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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GEORGE JACKO, JR., )
) Court of Appeals No. A-6920
Appellant, ) Trial Court No. 3HO-97-421 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1638 June 18, 1999]
______________________________)
Appeal from the District Court, Third Judicial
District, Homer, Jonathan H. Link, Judge.
Appearances: Patrick M. Anderson, Hedland,
Brennan, Heideman, & Cooke, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of Special Prosecutions
and Appeals, Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
[Stewart, Judge, not participating.]
MANNHEIMER, Judge.
George Jacko, Jr., appeals his conviction for violating
a domestic violence protective order. [Fn. 1] He contends that the
district court should have dismissed this charge once it was
determined (in retrospect) that the district court never should have
issued the domestic violence protective order in the first place.
But as explained in more detail below, even though a person may
rightly believe that a court made a mistake of fact or law when it
issued a restraining order, the person to whom the restraining order
is directed must obey the order until the person convinces the
issuing court (or a higher court) to reverse or vacate the order.
Thus, even though the restraining order against Jacko was issued in
error, Jacko was not at liberty to violate the order, and he could
properly be charged (and convicted) under AS 11.56.740(a).
On September 3, 1997, Sarah Thiele petitioned the district
court to issue a restraining order against Jacko. Thiele believed
that Jacko was attempting to initiate a romantic relationship with
her 16-year-old daughter, and she wanted the court to prohibit Jacko
from pursuing this relationship.
At the ex parte hearing on her petition, Thiele told
District Court Judge M. Francis Neville that she and Jacko were
second cousins. She had directed Jacko to stay away from her
daughter, but Jacko persisted in contacting the child. According
to Thiele, Jacko frequently called Thiele's daughter on the
telephone, and the ensuing conversations sometimes lasted for hours.
Jacko also mailed items to Thiele's daughter. Moreover, Thiele told
the court that someone had been making late-night telephone calls
to her residence approximately every other night for the two weeks
preceding the hearing.
Judge Neville granted Thiele's petition and issued a
domestic violence restraining order against Jacko under AS 18.66.-
110. As the factual predicates for this restraining order, Judge
Neville found probable cause to believe (1) that Jacko and Thiele
were related within the fourth degree of consanguinity, and (2) that
Jacko had committed an act of domestic violence against Thiele
specifically, harassment by telephone as defined in AS 11.61.-
120(a)(2)-(4). [Fn. 2]
One of the provisions of this restraining order directed
Jacko to stay away from Thiele's residence. Another provision
barred Jacko from being in Thiele's daughter's presence.
Jacko was served with this order in the late afternoon of
September 5, 1997. A police officer explained the terms of the
order to Jacko, and Jacko acknowledged that he knew who Thiele's
daughter was and that he knew where the Thieles lived.
Less than three hours later, Jacko drove up to the Thiele
residence. Thiele's daughter and two of her friends were standing
outside, and they saw Jacko (who was within 75 feet of the house).
When Jacko pulled his car to within 20 feet of Thiele's daughter,
the three girls ran inside the house and alerted Sarah Thiele.
Thiele then notified the police. Jacko was arrested a short time
later, after he admitted driving down the street where the Thiele
residence is located.
Two weeks later, after Jacko had been charged with
violating the restraining order, Jacko asked Judge Neville to vacate
the order. He asserted (and proved) that he and Thiele were not
related within four degrees of consanguinity, but rather five. (As
noted above, Thiele originally told Judge Neville that she and Jacko
were second cousins which would place them in the sixth degree
of consanguinity. In fact, Jacko and Thiele are first cousins once
removed the fifth degree of consanguinity.) Based on Jacko's
proof, and because AS 18.66.990(5)(E) only authorizes a restraining
order when the petitioner and the respondent are related within four
degrees of consanguinity, Judge Neville vacated the restraining
order.
After successfully petitioning Judge Neville to vacate the
restraining order, Jacko asked Superior Court Jonathan H. Link to
dismiss the criminal charge. Jacko asserted that, because everyone
now conceded that the restraining order should never have been
issued, Jacko could not properly be charged with a criminal offense
for violating the order. Judge Link refused to dismiss the charge,
and Jacko was ultimately convicted (following a jury trial).
On appeal, Jacko renews his argument that the charge
against him should have been dismissed before trial. Jacko points
out that Sarah Thiele told the court that she and Jacko were second
cousins. Based on this, Jacko argues that it should have been
obvious to Judge Neville that Thiele had failed to prove that she
and Jacko were related within four degrees of consanguinity.
Therefore, Jacko contends, the restraining order was "void" and he
could violate the order with impunity.
This is incorrect. Even though a court's restraining
order or injunction may be factually unjustified (even obviously
factually unjustified, as was the case here), the persons subject
to that order must nevertheless obey it until the order is vacated
or reversed through process of law. That was the holding of this
court in Weidner v. State [Fn. 3] and of the United States Supreme
Court in United States v. United Mine Workers of America [Fn. 4].
This doctrine that a person must obey a court order
until it is reversed or vacated by judicial decision is similar
to the rule that a person may not use force to resist an unlawful
but peaceable arrest [Fn. 5] nor use force to resist the seizure
of property under an unlawful court order [Fn. 6]. Judge Learned
Hand, speaking of the rule that a person may not forcibly resist an
unlawful arrest, declared:
The idea that you may resist peaceful arrest
... because you are in debate about whether it is lawful or not,
instead of going to the authorities which can determine [this
question] ... [is] not a blow for liberty but[,] on the contrary,
a blow for attempted anarchy.
Miller, 462 P.2d at 427 (quoting 1958 Proceedings of the American
Law Institute, p. 254).
We give the same answer to Jacko's contention that a
person may flout a court order with impunity if it later turns out
that the order was illegal. Such a rule would foster disorder and
violence. We reaffirm our holding in Weidner: a person is obliged
to obey a restraining order even an illegal one until, through
judicial process, the order is vacated or reversed.
In United Mine Workers, the United States Supreme Court
recognized an exception for situations in which the issuing court
either lacked personal jurisdiction over the person ostensibly
subject to the order or lacked subject-matter jurisdiction to issue
the type of order in question. [Fn. 7] But Jacko's case involves
neither of these exceptions. Jacko was present in Alaska and was
therefore subject to the personal jurisdiction of the district
court. [Fn. 8] And, under AS 18.66.100 110, the district court is
authorized (that is, the court has subject-matter jurisdiction) to
issue domestic violence restraining orders such as the one issued
in Jacko's case.
Jacko raises an alternative argument based on dictum that
appears in Walker v. City of Birmingham. [Fn. 9] In Walker, the
United States Supreme Court was asked to set aside the contempt
convictions of people who decided to march in support of civil
rights even though this would mean violating an injunction issued
at the eleventh hour by a state court. The Supreme Court upheld the
marchers' contempt convictions, noting that, "[w]ithout question",
the court that issued the injunction had "jurisdiction over the
petitioners and over the subject matter of the controversy". [Fn.
10] The Supreme Court then added:
[T]his is not a case where the injunction was
transparently invalid or had only a frivolous pretense to validity.
We have consistently recognized the strong interest of state and
local governments in regulating the use of their streets and other
public places. [citations omitted] When protest takes the form of
mass demonstrations, parades, or picketing on public streets and
sidewalks, the free passage of traffic and the prevention of public
disorder and violence become important objects of legitimate state
concern.
Walker, 388 U.S. at 315-16, 87 S.Ct. at 1829.
Jacko seizes on the first sentence of this quoted passage,
the portion about injunctions that are "transparently invalid" or
that have "only a frivolous pretense to validity". He claims that
the restraining order issued against him was "transparently invalid"
because Sarah Thiele's evidence plainly showed that she was not
related to Jacko within the requisite four degrees of consanguinity.
But Jacko has taken the Supreme Court's words out of
context. As can be seen in the quoted passage, after the Supreme
Court adverts to injunctions that might be "transparently invalid"
or that might have "only a frivolous pretense to validity", the
Court then explains that it would extend facial validity to any
injunction whose avowed purpose is to preserve the free use of
public streets and sidewalks against the danger of disruption and
disorder. In other words, when the Court speaks of "transparently
invalid" injunctions, it is referring to the subject matter and
general purpose of the injunction not the particular facts of the
case or the specific allegations that prompted the lower court to
issue the injunction.
In Jacko's case, the challenged restraining order was
issued for the purpose of preventing harassment of a mother and her
minor daughter by one of their relatives. The state has a valid
interest in preventing such conduct. Thus, the restraining order
in this case does not violate the test suggested by the dictum in
Walker.
For these reasons, we conclude that Jacko was properly
charged under AS 11.56.740(a) for violating the domestic violence
restraining order. Even though this restraining order was not
supported by the evidence presented to Judge Neville, and even
though Judge Neville ultimately vacated the restraining order for
this very reason, Jacko was not free to violate the restraining
order while it remained in effect.
Jacko raises one other challenge to his conviction, a
challenge based on an evidentiary ruling made by his trial judge.
Before trial began, the prosecutor asked Judge Link to
exclude any evidence or mention of the fact that the restraining
order issued against Jacko was ultimately vacated. Jacko's attorney
objected to this request. The defense attorney told Judge Link that
he feared the jury would become unfairly prejudiced against Jacko
if the jurors heard that a "domestic violence" restraining order had
been issued against Jacko, without any explanation that the order
was later vacated as being factually unfounded. The defense
attorney suggested that, without this explanation, the jurors might
unfairly conclude that Jacko had committed an act of violence.
Judge Link noted that, because Jacko could be convicted
for violating an invalid restraining order, Judge Neville's later
act of vacating the restraining order had no direct relevance to
Jacko's trial. He did concede, however, that in all trials for
violating a domestic violence protective order, the existence of the
protective order would "create, or at least it has the potential to
create, presumptions or prejudice by virtue of inferences that
jurors may draw from the fact that it was issued." Judge Link
characterized the issue as "one of [the] balancing acts" required
by Alaska Evidence Rule 403. He ultimately granted the State's
request (that is, he barred any reference to the later invalidation
of the restraining order), but he added that he would consider
instructing the jury not to draw any inferences or assumptions from
the existence of the restraining order.
Judge Link did, in fact, later instruct Jacko's jury that
domestic violence restraining orders are generally issued "without
notice to the respondent" and that, therefore, the respondent
"cannot contest the allegations ... until later". Judge Link also
expressly instructed the jury that "[t]he entry of the domestic
violence order in this case is not to be interpreted by you as
evidence that any domestic violence actually occurred."
On appeal, Jacko renews his argument that he should have
been allowed to introduce evidence that Judge Neville later
invalidated the restraining order. But we note that such testimony
might have invited another form of prejudice by suggesting to the
jury that Jacko's actions were inconsequential and unworthy of legal
attention.
We also note that Jacko's requested relief the
opportunity to explain that the restraining order was later vacated
does not necessarily cure the prejudice that his defense attorney
was speaking of. Under the definitions contained in AS 18.66.990,
a "domestic violence restraining order" may sometimes be validly
issued even when there has been no act of "violence" as that term
is normally understood for instance, when a defendant engages in
telephonic harassment, as alleged in this case. In such
circumstances, the same unfair prejudice the false inference that
the defendant had committed an act of violence might arise even
in cases where the restraining order was undisputedly valid. The
real source of potential prejudice is not the ultimate validity or
invalidity of the restraining order, but rather the fact that the
restraining order is termed a "domestic violence" restraining order.
After examining the record in Jacko's case, we are
convinced that the jury was not prejudiced in the way Jacko
suggests. First, Judge Link gave the curative instructions noted
above. Second, none of the testimony at Jacko's trial suggested
that he had engaged in physical violence. Sarah Thiele explained
to the jury that she had sought the restraining order to thwart
Jacko's attempts to initiate a romantic relationship with her
daughter.
Indeed, only one of the witnesses at Jacko's trial
referred to the restraining order as a "domestic violence" order.
Thiele herself referred to the restraining order as a "protective
writ" or a "protective order". With one exception, the police
officers uniformly referred to it as a "temporary restraining order"
or "TRO". (The one exception occurred during the testimony of
Officer Rosencrans; the prosecutor asked him about his general
practice when serving "domestic violence writs", and Rosencrans did
mention that he had received "a request for service of domestic
violence documents".)
Given Judge Link's curative instructions, Sarah Thiele's
explanation of the factual basis for the restraining order, and the
paucity of references to "domestic violence" at Jacko's trial, we
conclude that Judge Link did not abuse his discretion when he
precluded Jacko from presenting evidence that Judge Neville later
invalidated the restraining order that Jacko violated.
Jacko raises two arguments regarding his sentencing.
First, Jacko claims that it was error for Judge Link to
allow the State to present information gleaned from a prior
legislative investigation into Jacko's conduct with women. However,
Jacko fails to brief this point in a meaningful way. The point is
therefore waived. [Fn. 11]
Second, Jacko claims that his sentence 365 days'
imprisonment with 357 days suspended (8 days to serve) is
excessive. We do not have jurisdiction to decide this issue.
Because Jacko received only 8 days to serve, he has no right to
appeal his sentence, and this court has no jurisdiction to consider
Jacko's claim that his sentence is excessive. [Fn. 12] Jacko may,
however, seek discretionary review of his sentence from the Alaska
Supreme Court under Appellate Rule 215(a)(2).
Accordingly, we AFFIRM Jacko's conviction. And, having
decided the issues in this appeal that lie within our jurisdiction,
we now REFER Jacko's excessive sentence claim to the supreme court
under Appellate Rule 215(k).
FOOTNOTES
Footnote 1:
AS 11.56.740(a).
Footnote 2:
See AS 18.66.990(3)(H) and (5)(E), respectively defining
"domestic violence" and "household member" for purposes of
construing the laws authorizing the courts to issue domestic
violence restraining orders.
Footnote 3:
764 P.2d 717, 721 (Alaska App. 1988).
Footnote 4:
330 U.S. 258, 293-94; 67 S.Ct. 677, 696; 91 L.Ed. 884 (1947).
Footnote 5:
See Miller v. State, 462 P.2d 421, 426-27 (Alaska 1969).
Footnote 6:
See Jurco v. State, 825 P.2d 909, 913-15 (Alaska App. 1992).
Footnote 7:
330 U.S. at 291, 67 S.Ct. at 694-95.
Footnote 8:
See AS 22.15.070.
Footnote 9:
388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).
Footnote 10:
Walker, 388 U.S. at 315, 87 S.Ct. at 1829.
Footnote 11:
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406,
410 (Alaska 1990) (when a claim is given only cursory treatment in
a party's brief, the appellate court can deem the point waived and
not consider it).
Footnote 12:
See AS 12.55.120(d); AS 22.07.020(c)(2).
