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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).
