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MacDonald v. State (3/3/00) ap-1665
MacDonald v. State (3/3/00) ap-1665
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
JACK A. MACDONALD, SR.)
) Court of Appeals No. A-7231
Appellant, ) Trial Court Nos. 3PA-S98-1529/1534 CR
)
v.)
) O P I N I O N
STATE OF ALASKA,)
) [No. 1665 - March 3, 2000]
Appellee.)
)
Appeal from the District Court, Third Judicial
District, Palmer, Suzanne H. Lombardi and Paul Olson, Judges.
Appearances: Benjamin I. Whipple, 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 and
Stewart, Judges.
COATS, Chief Judge.
This appeal involves the question of whether an
individual can be prosecuted for the crime of "violating a
domestic violence protective order," AS 11.56.740(a), when he has
actual knowledge of the protective order, but has not been formally
served with a written copy of the order. MacDonald was charged
with five counts of violating a domestic violence protective order.
He filed a motion in district court to dismiss the charges against
him, claiming that the court lacked jurisdiction over him because he had not
been formally served with a written copy of the order in
accordance with Rule 4 of the Alaska Rules of Civil Procedure. After finding
that MacDonald had actual knowledge of the domestic
violence protective order at the time the violations occurred, the
district court denied MacDonald's motion to dismiss. MacDonald
subsequently pled no contest to, and was found guilty of, one count
of violating a domestic violence protective order in each of two
separate, but related cases. [Fn. 1] We affirm.
In a written order denying MacDonald's motion to
dismiss, District Court Judge Suzanne H. Lombardi found that an ex
parte domestic violence protective order was issued against
MacDonald on June 29, 1998. The order stated he was not to contact
Ruth Kern and that he was to stay away from her residence. After
the attempts to serve a written copy of the order on MacDonald
failed, the police called MacDonald and informed him of the order.
In addition, both Kern and her friend advised MacDonald that there
was an order not to contact Kern. MacDonald acknowledged to
different persons that he knew the protective order had been issued
against him and that he was avoiding service. After he had been
notified of the order, MacDonald contacted Kern at her residence
and at various other places.
MacDonald does not challenge Judge Lombardi's factual
findings, nor does he argue that he lacked actual knowledge of the
domestic violence protective order at issue. [Fn. 2] Instead, he
contends that he was not bound by the protective order because, at
the time the violations occurred, he had not been personally served
with a written copy of the order pursuant to Alaska Civil Rule 4.
[Fn. 3] MacDonald also argues that his conviction violates his due
process rights and that AS 18.66.160(a) and (b), which governs
service of domestic violence protective orders, is
unconstitutionally vague. We disagree.
MacDonald's arguments regarding the applicability of Civil Rule 4 igno
re the fact that he was subject to an ex parte
domestic violence protective order. [Fn. 4] Alaska Civil Rule
65(d) specifically governs the scope of injunctions and restraining orders.
It is a familiar rule of statutory construction that a
specific provision governs, even though a general provision also
applies. [Fn. 5] Therefore, Civil Rule 65(d), rather than Civil
Rule 4, determines when MacDonald was bound by the domestic
violence protective order. Courts have consistently held that in
criminal contempt proceedings, formal or personal service of an
injunction or restraining order is not required for the defendant
to be bound by the order. Instead, actual notice of the order is
all that is required. [Fn. 6] Civil Rule 65(d) provides that:
Every order granting an injunction and every
restraining order . . . is binding only upon parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those persons
in active concert or participation with them who receive actual notice of the
order by personal service or otherwise (emphasis added).
MacDonald argues that the actual notice provisions of Civil Rule
65(d) pertain only to those in "active concert" with a party to a
restraining order. According to MacDonald, a party to a
restraining order must be personally served with the order before
he or she is bound by it. MacDonald's argument lacks merit. The
actual notice requirements of the rule clearly apply to parties, as
well as those in "active concert" with them. [Fn. 7] We therefore
conclude that MacDonald was subject to prosecution for violating a
domestic violence protective order, pursuant to AS 11.56.740(a),
because it is uncontested that he had actual knowledge of the
protective order issued against him.
MacDonald next argues that his conviction violates his
constitutional right to due process. MacDonald claims that at the
time of his arrest, the court lacked personal jurisdiction over him
because he had not yet been served with a written copy of the protective
order. MacDonald relies on cases which hold that due
process requires that a written copy of a complaint must be served
on a defendant in a civil action before a default judgment can be
entered against the defendant. [Fn. 8] But, MacDonald was not a defendant in
a civil action -- he was subject to an ex parte
domestic violence order issued under AS 18.66.110(a). This
statutory provision is part of the legislation known as the
Domestic Violence Prevention and Victim Protection Act of 1996.
[Fn. 9]
The purpose of this Act is self-evident -- to protect
victims of domestic violence. Consistent with this underlying
purpose, AS 18.66.110(a) provides that, under certain
circumstances, an ex parte order may be issued by the court, without notice
against a person accused of committing domestic
violence. [Fn. 10] Before such an order can be issued, the court
must find that there is probable cause that a crime involving
domestic violence has occurred and that such an order is necessary
to protect the petitioner from domestic violence. [Fn. 11] The
petitioner must also certify in writing what efforts have been
made, if any, to provide notice to the person against whom the
order has been issued. [Fn. 12] Further, the ex parte order
expires 20 days after it is issued unless it is dissolved earlier
by the court "at the request of either the petitioner or the
respondent and after notice and, if requested, a hearing." [Fn. 13]
The superior and district courts both have jurisdiction over cases
involving domestic violence protective orders issued pursuant to AS
18.66.100-18.66.180. [Fn. 14]
The issuance of ex parte orders is not an unusual
procedure. Courts issue ex parte orders in a variety of situations
in addition to those involving domestic violence. Civil Rule 65(b)
sets forth the circumstances under which a person can obtain an ex
parte temporary restraining order without notice to the adverse
party. The issuance of such an order is an emergency procedure and is only
appropriate when the applicant is in need of immediate
relief. [Fn. 15] To insure that the rights of all persons
involved are protected, Civil Rule 65(b) prescribes various
safeguards prior to the issuance of temporary restraining orders. For
example, it must be shown that "immediate and irreparable
injury, loss, or damage will result to the applicant before the
adverse party . . . can be heard in opposition[.]" [Fn. 16] The
rule also requires the applicant's attorney to certify in writing
the efforts, if any, that have been made to give notice to the
adverse party and the reasons supporting the claim that notice is
not required. [Fn. 17] As discussed above, AS 18.66.110(a)
includes requirements similar to those set forth in Civil Rule
65(b). These requirements help insure that the constitutional
rights of a person subject to an ex parte domestic violence
protective order are protected. [Fn. 18]
Furthermore, Civil Rule 65(d) requires a person to have
actual notice of the injunction or restraining order before he or
she is bound by it. As Wright, Miller, and Kane note:
Another prerequisite for binding a person to
an injunction is that the person must have notice of the order. The Supreme
Court has made it clear that reasonable notice and an
opportunity to defend are part of the due process limitations on the
jurisdiction of a court. Thus, a question occasionally arises
as to what constitutes knowledge of a judicial decree sufficient to sustain a
contempt sanction. The text of Rule 65(d) states that
those "who receive actual notice of the order by personal service or
otherwise" may be bound. This makes it clear that the amenities of original
process need not be followed. [Fn. 19]
It is undisputed that MacDonald had actual notice of the domestic
violence protective order issued against him. Such notice clearly
satisfied the requirements of Civil Rule 65(d). Accordingly, we
find that MacDonald's constitutional right to due process were not violated.
MacDonald also argues that his conviction should be
overturned because AS 18.66.160(a) and (b), which allow a peace
officer to use "every reasonable means" and the petitioner to use
"other available means" to serve a domestic violence protective
order is unconstitutionally vague. MacDonald focuses on the
legislative history of the Domestic Violence Prevention and Victim Protection
Act of 1996, which states that the enactment of AS
18.66.160 has the effect of amending Civil Rule 4. [Fn. 20]
MacDonald argues that because the precise nature of the amendment
is not specified in AS 18.66.160, the statute is unconstitutionally
vague. We disagree.
The legislature's statement regarding the impact of AS
18.66.160 on Civil Rule 4 is moot since Civil Rule 65(d), rather
than Civil Rule 4, determines when a person is bound by a domestic
violence protective order. Further, in Turney v. State, [Fn. 21]
the Alaska Supreme Court held that three factors are to be
considered in deciding whether a statute is unconstitutionally
vague:
(1) whether it is "so imprecisely drawn and
overbroad that it 'chills' the exercise of [F]irst [A]mendment rights," (2)
whether it gives adequate notice of the conduct
prohibited, and (3) whether imprecise language encourages arbitrary
enforcement by allowing prosecuting authorities undue discretion to
determine the scope of the statute's prohibitions. [Fn. 22]
The statute challenged by MacDonald, AS 18.66.160(a) and (b),
describes how domestic violence protective orders are served. As
such, this statute does not impact First Amendment rights, it does
not prohibit any type of conduct, nor does it give rise to a civil
or criminal enforcement action. Moreover, the "reasonable means"
and "other available means" language that MacDonald attacks is not
vague. Rather, it is consistent with the "actual notice" language in Civil
Rule 65(d) discussed above. We therefore conclude that AS
18.66.160(a) and (b) is not unconstitutionally vague.
Finally, we note that MacDonald's arguments are contrary
to the purpose of the Domestic Violence Prevention and Victim
Protection Act of 1996, which is to protect victims of domestic
violence. MacDonald's proposed interpretation of the Act would
allow a person who knows that an ex parte domestic violence
protective order has been issued against him or her, but has not
yet been served, to violate the order and, at the same time, avoid
prosecution. Such an interpretation would also encourage someone
who is subject to an ex parte domestic violence protective order to
evade service of process. We agree with the Magistrate's statement
that "from a standpoint of the entire purpose of an ex parte
restraining order to let it hinge on whether or not someone has
been actually served with the paper once one has knowledge of the
existence of the order seems to defeat its entire purpose."
The judgment of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
In his plea agreement with the state, MacDonald preserved
for appeal, pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska
1974), the issues related to whether he was subject to the
protective order.
Footnote 2:
In his reply brief, MacDonald argues that the district
court did not rely on "competent evidence" in finding that
MacDonald had knowledge of the existence of the order, and its
contents, and that he tried to evade service of the order. We
decline to address this argument because MacDonald raised it on
appeal for the first time in his reply brief. See Wilson v.
State, 967 P.2d 98, 100 (Alaska App. 1998).
Footnote 3:
MacDonald was served with a written copy of the order on
July 14, 1998 -- the same day as his initial appearance.
Footnote 4:
The protective order was issued against MacDonald pursuant
to AS 18.66.110(a).
Footnote 5:
See Sprague v. State, 590 P.2d 410, 415 n.14 (Alaska
1979); 2B norman j. singer, sutherland statutory construction sec. 51.05 at
174 (5th ed. 1992).
Footnote 6:
See e.g. State v. Linsky, 379 A.2d 813, 818 (N.H. 1977)
(parties who have actual notice or knowledge of an injunction are
bound by the injunction and can be punished for contempt even
though they have not been served or the service was defective);
and State v. Franck, 499 N.W.2d 108, 110-11 (N.D. 1993)
(abortion protester's criminal conviction for violating
injunction upheld even though the protester was not provided with
a copy of the injunction, nor was any portion read to her, where
evidence established the protester had actual knowledge of the
injunction and that she was violating its provisions).
Footnote 7:
See 11A charles alan wright, arthur r. miller & mary kay kane, federal
practice and procedure sec. 2956 at 335-38 (2d ed. 1995).
Footnote 8:
See e.g. State, Dept. of Corrections v. Kila, Inc., 884
P.2d 661 (Alaska 1994); Beam v. Adams, 749 P.2d 366 (Alaska
1988).
Footnote 9:
Ch. 64, sec.sec. 1-84, SLA 1996.
Footnote 10:
AS 18.66.110(a).
Footnote 11:
Id.
Footnote 12:
Id.
Footnote 13:
Id.
Footnote 14:
AS 22.10.020(a) and AS 22.15.030(10).
Footnote 15:
See wright, supra note 7, sec. 2951 at 256-57.
Footnote 16:
Civil Rule 65(b).
Footnote 17:
Id.
Footnote 18:
See wright, supra note 7, sec. 2951 at 257, 262-64.
Footnote 19:
See id. sec. 2956 at 337-38 (citations omitted).
Footnote 20:
Ch. 64, sec. 77, SLA 1996.
Footnote 21:
936 P.2d 533, 542 (Alaska 1997).
Footnote 22:
Id.
