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Strane v. Alaska (6/11/99) ap-1637

NOTICE: 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@appellate.courts.state.ak.us IN THE COURT OF APPEALS OF THE STATE OF ALASKA PATRICK STRANE, ) ) Court of Appeals No. A-7014 Appellant, ) Trial Court No. 3AN-98-887 Cr ) v. ) O P I N I O N ) STATE OF ALASKA, ) ) Appellee. ) [No. 1637 June 11, 1999] ______________________________) Appeal from the District Court, Third Judicial District, Anchorage, John R. Lohff, Judge. Appearances: Jill E. Farrell, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges. MANNHEIMER, Judge. In this appeal, the parties ask us to decide whether the crime of "violating a domestic violence protective order", AS 11.- 56.740(a), is a strict liability offense. This criminal statute applies to people who are subject to a domestic violence protective order containing one or more of the provisions listed in AS 18.66.- 100(c)(1) (7). [Fn. 1] The statute declares that such a person is guilty of a class A misdemeanor if the person "knowingly commits or attempts to commit" an act that violates the specified provision(s) of the protective order. Strane argues that, to establish this crime, the State must prove that the defendant acted "recklessly" (as defined in AS 11.81.900(a)(3)) concerning the possibility that his or her conduct violated the protective order. Strane relies on the rule of statutory construction codified in AS 11.81.610(b): Except as provided in AS 11.81.600(b) [a provision that deals with strict liability offenses], if a provision of law defining an offense does not prescribe a culpable mental state, the culpable mental state that must be proved with respect to ... a circumstance ... is "recklessly". According to Strane's analysis, a court's decision to restrict a defendant's activities by issuing a domestic violence protective order is the "circumstance" that makes the defendant's ensuing conduct criminal. Thus, Strane argues, AS 11.56.740(a) should be construed to require proof that the defendant acted recklessly with regard to this circumstance proof that the defendant was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" that the protective order prohibited the defendant from engaging in the charged conduct. [Fn. 2] The State, on the other hand, contends that AS 11.56.- 740(a) imposes strict liability concerning the existence and the meaning of the provisions of a court's protective order. The State argues that the provisions of a judicially-issued protective order should be analogized to the provisions of a statute. According to the State, just as a defendant normally can not rely on ignorance or misunderstanding of the law as a defense to a criminal charge, a defendant should not be able to rely on ignorance or misunderstanding of the provisions of a protective order as a defense to AS 11.56.740(a). During pre-trial motion practice in Strane's case, the district court adopted the State's position; the court ruled that Strane could not rely on a defense that he was unaware of or misunderstood the provisions of the protective order. Following that ruling, Strane and the State agreed to waive a jury and to try this case on stipulated facts, apparently for the purpose of expediting resolution of the case and getting this legal issue before us. The district court found Strane guilty, and Strane now appeals. Having considered the arguments of the parties, we reject the State's position for three reasons. First, we note that there is a constitutionally-rooted difference between a protective order and criminal legislation. A protective order is the product of litigation; it is premised on a judicial finding that the respondent has committed an act of domestic violence. Further, a protective order is directed to a specific individual; the order bars this individual (and no one else) from engaging in specified activities. These two characteristics of the protective order the fact that it is directed to a named individual, and the fact that it is issued upon a finding that this named individual has engaged in criminal conduct are hallmarks of a bill of attainder, a type of legislation that is specifically prohibited by both the federal and state constitutions. [Fn. 3] The legislature could not lawfully "enact" a protective order, and this fact seriously undercuts the State's argument that a protective order should be treated as if it were the equivalent of criminal legislation. The State suggests that its strict-liability interpretation of AS 11.56.740(a) is supported by the doctrine that "ignorance of the law does not excuse". The State argues that AS 11.56.740(a) should be deemed the same type of statute as AS 11.61.200(a)(1) and (a)(10), laws which prohibit convicted felons from possessing concealable firearms and from residing in a house where a concealable firearm is kept. The State notes that, in Afcan v. State [Fn. 4] and in Morgan v. State [Fn. 5], this court held that a felon charged with violating these laws can not defend by claiming ignorance of the law. The State argues that we should apply the same rule to a person charged with violating a domestic violence protective order: such a defendant should not be able to rely on ignorance of the provisions of the protective order. The State's proposed analogy between AS 11.56.740(a) and the felon-in-possession laws is flawed. True, felons may be convicted of possessing a concealable firearm without proof that they were aware of, and understood, the felon-in-possession statute. But the decisions in Afcan and Morgan are premised on the assumption that felons either are aware of or should be aware of their felony convictions. The felony conviction is the circumstance or occurrence that puts these defendants on reasonable notice that the criminal law may regulate or restrict their conduct. We discussed this point of law in Morgan [Fn. 6] when we distinguished our holdings in Afcan and Morgan from the supreme court's decision in Hentzner v. State. [Fn. 7] Hentzner involved the prosecution of a miner under the securities laws. The miner had asked several people to advance him a "grubstake", with the promise that the money and supplies advanced to him would be repaid from his mining proceeds. The supreme court held that the miner could not be convicted of failing to register this investment contract absent proof that the miner was at least aware of a substantial possibility that the securities laws regulated or restricted his activities. [Fn. 8] In Morgan, we held that convicted felons stand in a different position from the miner in Hentzner because "[i]t is widely known that felons are subject to a variety of legal disabilities and restrictions", and thus it is "reasonable to hold felons to a duty of inquiry concerning those restrictions". [Fn. 9] With regard to the statute at issue in Strane's case, AS 11.56.740(a), we do not doubt that a person could be convicted of this offense (violating a protective order) even though they were unaware of the existence of this criminal statute. [Fn. 10] But this does not mean that a person could be convicted of this crime even when they had no reason to believe that they might be subject to a protective order containing one of the seven types of restraining provisions specified in the statute. The court's issuance of such a protective order is the circumstance or event that triggers the regulation or restriction of the defendant's conduct under AS 11.56.740(a). Thus, the maxim "ignorance of the law does not excuse" does not apply to a defendant who has no notice that a protective order may have been issued against them. Our second reason for rejecting the State's argument that AS 11.56.740(a) should be construed as a strict liability offense is based on the rule of statutory construction codified in AS 11.81.600(b). This statute declares the rule of construction regarding strict liability offenses, and this rule appears to preclude us from construing AS 11.56.740(a) as a strict liability offense. AS 11.81.600(b) states that, with the exception of "violations" (the most minor degree of offense), all criminal offenses should be construed to require proof of a culpable mental state unless the offense is expressly designated as one of "strict liability" or the legislature has otherwise affirmatively indicated its intention to dispense with a culpable mental state. The crime of violating a protective order is a class A misdemeanor. [Fn. 11] No portion of AS 11.56.740 expressly designates the crime as one of strict liability, and the wording of the statute gives no other indication that the legislature wished to dispense with proof of a culpable mental state. Finally, the State has presented us with no legislative history indicating the legislature's intention to make this a strict liability offense. We are therefore obliged, under AS 11.81.600(b), to construe AS 11.56.740(a) as requiring proof of a culpable mental state to reject the State's contention that AS 11.56.740(a) imposes strict liability on those persons who violate the provisions of a protective order. Our third reason for rejecting the State's strict liability construction of AS 11.56.740(a) is that the crime of violating a protective order appears to be merely a specific instance of the more general crime of indirect contempt. Indirect contempt of court occurs when a person violates a court order outside the court's presence or, more precisely, whenever the court can not ascertain the reason for the violation without investigating circumstances or events that occurred outside the court's presence. [Fn. 12] Almost all violations of a domestic violence protective order will occur outside the court's presence, and thus these violations could be charged as indirect contempts. But not all violations of a court order are contemptuous. Indirect contempt has traditionally required proof that the defendant acted willfully when the defendant violated the court's order. [When we speak of disobedience] of a lawful order of the court[,] [this] connotes more than the mere failure to comply with [the] order. The word "disobey" has the connotation of wilfully failing to comply, without some lawful or reasonable excuse for not complying. If such an excuse ... is established, there can be no contempt of the authority of the court. Johansen v. State, 491 P.2d 759, 767 (Alaska 1971). Because the violation of a domestic violence protective order appears to be merely a specific variety of indirect contempt, it is logical to infer that the legislature, when it enacted AS 11.56.740(a), intended to incorporate the mens rea that traditionally is required for all contempts. For all these reasons, we conclude that AS 11.56.740(a) should not be interpreted to impose strict liability on those who violate the provisions of a protective order. The State argues that, if AS 11.56.740(a) is interpreted to require proof of mens rea, this will create a loophole through which any enterprising defendant may slip. The State fears that defendants charged with violating a protective order will now be able to defeat the charge by simply asserting that they did not read the court's order carefully enough or thoroughly enough to understand the meaning and scope of its provisions. Based on our review of the existing law on this subject, we believe that the State's fears are groundless. The cases dealing with this aspect of the law of contempt unanimously hold that a person who knowingly ignores a court order, or who knowingly fails to read it through, can be convicted of criminal contempt when they later violate the provisions of the order. For example, in Vermont Women's Health Center v. Operation Rescue [Fn. 13], a court issued a restraining order against protestors who were demonstrating at an abortion clinic. When the chief of police went to the clinic and read the text of the court's order aloud to the protestors, the protestors "sang and chanted in an attempt to drown out the officer's voice". [Fn. 14] Police officers then approached the protestors; each protestor was offered a copy of the court's restraining order and the chance to leave the premises rather than be arrested. The protestors refused to take the offered copies of the restraining order. [Fn. 15] On appeal, the Vermont Supreme Court upheld the protestors' convictions for contempt despite the claims of a number of individual protestors that they were not personally aware of the terms of the restraining order until after they had been arrested. [Fn. 16] The court declared that "there was substantial, credible evidence to support the trial court's findings that each defendant knew of the terms of the order." [Fn. 17] However, the true rationale of the decision appears to be that the protestors could properly be convicted of contempt if they willfully ignored the court's order or willfully failed to apprise themselves of its provisions. A similar situation was presented in People v. Poe. [Fn. 18] A court had enjoined the defendants from picketing a bank. Each defendant was personally served with a copy of the court's restraining order, but they continued to picket and they were subsequently arrested and charged with contempt. The defendants argued that, given the length of the restraining order (between 50 and 60 pages) and the short time between the service of this order and the defendants' arrests (five minutes to an hour), it was impossible for the defendants to have informed themselves of the provisions of the restraining order. Thus, the defendants contended, the government failed to prove that they subjectively knew and understood the provisions of the order. The appeals court noted that all but one defendant had refused service of the order altogether, permitting the tendered documents to drop to the floor or street. The court then held that these circumstances supported a finding that the defendants had acted with the requisite mens rea. The court declared that, once the government proved that the defendants were served with the restraining order, the government had no additional obligation to prove that the defendants read and subjectively understood the provisions of the restraining order. [Fn. 19] In United States v. Southern Wholesale Grocers' Ass'n [Fn. 20], the court held that defendants who had been served with a restraining order had a duty to read it, and thus they could not rely on a defense that they were ignorant of the provisions of the order: [C]opies of the decree were sent by registered mail to all members of the association. The defendant Hunt had knowledge of the fact that the association had been enjoined. Before attempting or assuming to act in his capacity as a director, ... it was his duty to inform himself of the effect of the injunction, and, failing to do so, he acted at his peril. Southern Wholesale Grocers', 207 F. at 444. The court noted that the defendant testified that he had no intention of violating the restraining order. But the court rejoined that a restraining order "would be valueless ... if those bound by it ... [were] permitted to purge themselves [of contempt] by denying the intention to [violate the order] or by pleading ignorance of the meaning of its terms." [Fn. 21] It appears that knowledge of the order, and not necessarily personal service, is the crucial element in the government's proof of a defendant's willful violation. In Bucking- ham Corp. v. Modern Liquors, Inc. [Fn. 22], the defendants apparently were not formally served with the court's restraining order, but they and their attorneys were present in court when the order was read. The Illinois appeals court held that a defendant's "[k]nowledge [of a restraining order] is sufficiently shown where it appears that the one sought to be held in contempt was present in court and heard the order when it was given." [Fn. 23] Based on these cases, it appears that a person can be punished for violating a domestic violence protective order when the government proves that the person recklessly disregarded the possibility that their conduct was restricted or prohibited by the provisions of that order, or (alternatively) when the government proves that the person knowingly chose to remain ignorant of the provisions of the order. Thus, even though we reject the State's contention that AS 11.56.740(a) creates a strict liability offense, we are confident that domestic violence protective orders will continue to effect their intended purpose, and that AS 11.56.740(a) will act as a deterrent and a punishment to those who might be tempted to ignore such orders. For the reasons explained in this opinion, we conclude that the district court found Strane guilty under the wrong legal standard: AS 11.56.740(a) is not a strict liability crime. We therefore REVERSE Strane's conviction. As explained earlier, it appears that the parties' decision to waive jury and to try this case on stipulated facts was prompted by the parties' desire to obtain expeditious appellate review of the district court's ruling that AS 11.56.740(a) was a strict liability offense. We therefore think that the parties should now be given the opportunity to withdraw from their stipulation and to try this case normally, if they desire. Finally, we wish to clarify the limited nature of our decision. We decide only that AS 11.56.740(a) is not a strict liability offense. Although we hold that the State must prove that the defendant acted with a culpable mental state, we do not decide what that applicable culpable mental state is. As explained above, Strane contends that the applicable culpable mental state is "recklessly". However, we recently had another appeal involving this same statute; in that appeal, both the State and the defendant assumed (without citation to any legal authority) that the applicable culpable mental state was "knowingly". We were able to resolve that other appeal without deciding whether the applicable culpable mental state was "recklessly" or "knowingly", and thus we chose not to publish our decision. [Fn. 24] We are unwilling to decide this issue in Strane's case because no one has briefed the issue. We therefore leave resolution of this issue for a future case. FOOTNOTES Footnote 1: The seven referenced provisions of AS 18.66.100(c) authorize the court to: (1) prohibit the respondent from threatening to commit or committing domestic violence, stalking, or harassment; (2) prohibit the respondent from telephoning, contacting, or otherwise communicating directly or indirectly with the petitioner; (3) remove and exclude the respondent from the residence of the petitioner, regardless of [the] ownership of the residence; (4) direct the respondent to stay away from the residence, school, or place of [the] employment of the petitioner or any specified place frequented by the petitioner or any designated household member; (5) prohibit the respondent from entering a propelled vehicle in the possession of or occupied by the petitioner; (6) prohibit the respondent from using or possessing a deadly weapon if the court finds the respondent was in the actual possession of or used a weapon during the commission of domestic violence; [and] (7) direct the respondent to surrender any firearm owned or possessed by the respondent if the court finds that the respondent was in the actual possession of or used a firearm during the commission of the domestic violence[.] Footnote 2: See AS 11.81.900(a)(3). Footnote 3: See United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), construing Article I, Section 9 of the United States Constitution. Article I, Section 15 of the Alaska Constitution likewise prohibits bills of attainder. Footnote 4: 711 P.2d 1198, 1199 (Alaska App. 1986). Footnote 5: 943 P.2d 1208, 1211 (Alaska App. 1997). Footnote 6: 943 P.2d at 1211. Footnote 7: 613 P.2d 821 (Alaska 1980). Footnote 8: See id. at 825-26. Footnote 9: Morgan, 943 P.2d at 1211. Footnote 10: See AS 11.81.620(a): unless a criminal statute clearly specifies otherwise, neither "[k]nowledge ... as to whether [a person's] conduct constitutes an offense" nor "knowledge ... of the provision of law defining an offense" is an element of the crime. Footnote 11: AS 11.56.740(b). Footnote 12: See Stadler v. State, 813 P.2d 270, 273-74 (Alaska 1991); Webber v. Webber, 706 P.2d 329, 330 (Alaska App. 1985) ("disobedience of [a court order] outside [the court's] presence, amounts ... to an 'indirect criminal contempt'"); AS 09.50.010(5) ("disobedience of a lawful judgment, order, or process of the court" constitutes contempt). Footnote 13: 617 A.2d 411 (Vt. 1992). Footnote 14: Id. at 415. Footnote 15: See id. at 415-16. Footnote 16: See id. at 415. Footnote 17: Id. Footnote 18: 47 Cal. Rptr. 670, 677-78 (Cal. App. 1965). Footnote 19: See id. Footnote 20: 207 F. 434, 444 (N.D. Ala. 1913). Footnote 21: Id. Footnote 22: 306 N.E.2d 655 (Ill. App. 1973). Footnote 23: Id. at 659. Footnote 24: For interested readers, the unpublished decision is McDonald v. State, Memorandum Opinion No. 4062 (Alaska App.; June 9, 1999).