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State v. Roberts (3/10/00) ap-1666
State v. Roberts (3/10/00) ap-1666
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
STATE OF ALASKA, )
) Court of Appeals No. A-7159
Petitioner, ) Trial Court No. 4FA-S97-4012 CR
)
v. ) O P I N I O N
)
LINCOLN D. ROBERTS, )
)
) [No. 1666 - March 10, 2000]
Respondent. )
)
Petition for review from the Superior Court,
Fourth Judicial District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Petitioner. Marcia E. Holland, Assistant Public Defender,
Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, Public
Defender Agency as amicus curiae.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Judge.
This case requires us to interpret a statute, AS
12.30.027, which governs the authority of the court to set
conditions of bail release for a person charged with or convicted
of a crime of domestic violence. We conclude the statute forbids
the court to permit a person released on a charge or conviction of
a crime involving domestic violence to return to the residence of
his alleged victim.
A jury convicted Lincoln Roberts of assault in the third
degree, a class C felony, for assaulting M.J. in Venetie, Alaska.
[Fn. 1] Judge Beistline sentenced Roberts to a three-year
presumptive sentence. Roberts appealed his sentence and asked for
bail release during the pendency of his appeal. Judge Beistline
conducted a bail hearing and released Roberts to the custody of a
third-party custodian, the Village Chief of Venetie.
A few weeks following his initial release, Roberts
requested a modification of his release conditions so that he could
reside in the same residence with M.J., the victim of his assault.
Before his arrest for the assault, Roberts and M.J. had been living
together in a domestic relationship. They had a two-year-old
daughter together. The state opposed the release modification,
contending that AS 12.30.027 prohibited the court from allowing
Roberts to reside with M.J. That statute provides that "[when]
ordering release . . . of a person charged with or convicted of a
crime involving domestic violence [the court] may not order or
permit [the person so released] to return to the residence of the
alleged victim or the residence of a petitioner who has a
protective order directed to the person . . . ." [Fn. 2] Roberts
argued that the statute only restricted the court from permitting
the release of a defendant to the residence of a victim who had
obtained a protective order. Judge Beistline agreed with Roberts'
interpretation. Judge Beistline modified Roberts' conditions of
release to allow Roberts to reside with M.J. based upon M.J.'s
testimony that she wanted the judge to modify the release
conditions so that Roberts could reside with her, and the
assurances of the Village Chief that he would supervise Roberts and
would report any violations of the conditions of release to the
authorities. The state filed a petition for review in this court,
arguing that Judge Beistline's order violated AS 12.30.027(b). We
granted review. Following our granting of the petition for review,
Roberts moved to dismiss the petition on the ground that it was
moot because Roberts had violated his conditions of release and was
in custody. Roberts also stated that since the case was moot, he
would not be filing a brief. The state opposed dismissal, arguing
that the case fell within the public interest exception to the
mootness doctrine that the issue was an important one which
might otherwise evade review. We invited the Public Defender
Agency to file an amicus brief.
The issue in this case is an appropriate one to resolve under the
public interest exception to the mootness doctrine.
Generally courts will not resolve an issue when it is
moot that is, when the decision of an issue will not resolve an
on-going case or controversy. [Fn. 3] The state concedes that the
case before us is moot because Roberts is no longer on bail release
under the disputed order. But the state argues that we should
apply the public interest exception to the mootness doctrine. The
public interest exception to the mootness doctrine provides that
courts can resolve a dispute, even though it has become moot, when
the issue is one of public interest which is capable of repetition
and may repeatedly circumvent review:
The public interest exception requires the
consideration of three main factors: (1) whether the disputed
issues are capable of repetition, (2) whether the mootness
doctrine, if applied, may cause review of the issues to be
repeatedly circumvented, and (3) whether the issues presented are
so important to the public interest as to justify overriding the
mootness doctrine. None of these factors is dispositive; each is
an aspect of the question of whether the public interest dictates
that a court review a moot issue. Ultimately the determination of
whether to review a moot question is left to the discretion of the
court. [Fn. 4]
The state argues that in enacting AS 12.30.027, the
legislature intended to protect domestic violence victims. The
state argues that bail release of those charged or convicted of
domestic violence is a frequently occurring issue which tends to
evade review because defendants, as in the current case, violate a
condition of release or have their case resolved before this court
has the opportunity to rule on the issue. Although the amicus,
the Public Defender Agency, has argued against the state's
interpretation of AS 12.30.027(b), the amicus has not challenged
the application of the public interest exception to the mootness
doctrine in this case. We conclude that interpretation of AS
12.30.027(b) is an important issue which we should address at this
time.
Alaska Statute 12.30.027(b) forbids the court from permitting a
person released on a charge or convicted of a crime of domestic
violence from returning to the residence of the alleged victim.
When we interpret a statute we are to determine the
intent of the legislature in enacting the statute. [Fn. 5] We are
to review the statute de novo, without deference to the trial
court. [Fn. 6]
Alaska Statute 12.30.027(a) governs the release before
and after trial of a person who has been convicted of a crime
involving domestic violence. It provides that, before ordering the
release on bail of a person charged with or convicted of a crime
involving domestic violence, the court shall consider the safety of
the alleged victim:
Before ordering release before or after trial,
or pending appeal, of a person charged with or convicted of a crime
involving domestic violence, the court shall consider the safety of
the alleged victim or other household member.
It is undisputed that Roberts' conviction for assault in the third
degree, a violation of AS 11.41.220, was a "crime involving
domestic violence" covered by AS 12.30.027. A "crime involving
domestic violence" includes a crime under AS 11.41 "by a household
member against another household member." [Fn. 7] A "household
member" includes "adults or minors who live together or who have
lived together" [Fn. 8] and "persons who have a child of the
relationship." [Fn. 9] It is undisputed that Roberts and M.J.
lived together in the same household and had a child.
Alaska Statute 12.30.027(b) limits the court's authority
to release on bail a person charged with or convicted of a crime
involving domestic violence. The statute reads as follows:
A court may not order or permit a person
released under (a) of this section to return to the residence of
the alleged victim or the residence of a petitioner who has a
protective order directed to the person and issued or filed under
AS 18.66.100 - 18.66.180.
In the trial court, Roberts argued that the statute did not apply
to him. He argued that AS 12.30.027(b) only restricted the court
from releasing a defendant to "the residence of a petitioner who
had obtained a protective order against the defendant." Judge
Beistline agreed with Roberts' interpretation of the statute. The
amicus urges us to accept this interpretation. But if the
legislature wanted only to restrict the court from releasing a
defendant to the residence of a petitioner who had obtained a
protective order, the legislature could have accomplished the same
purpose by completely leaving out the phrase which we have put in
brackets:
A court may not order or permit a person
released under (a) of this section to return to the residence [of
the alleged victim or the residence] of a petitioner who has a
protective order directed to the person and issued or filed under
AS 18.66.100 - 18.66.180.
The Alaska Supreme Court has recognized the rule of
statutory interpretation that a "statute should be construed so
that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant." [Fn. 10] We
see no reason why the legislature would have added the phrase "to
the residence of the alleged victim" to the statute if it merely
wanted to restrict the court from releasing a defendant to the
residence of a petitioner who had obtained a protective order. It
would be unreasonable for us to conclude that the legislature added
the language "to the residence of the alleged victim" to the
statute for no purpose. It appears that the legislature intended
to restrict courts from releasing defendants charged with or
convicted of a crime of domestic violence to the residence of the
alleged victim. It appears that the legislature concluded that
permitting such a release might result in further domestic
violence. The legislature therefore restricted courts from
permitting such a release.
The constitutionality of the statute is not ripe for review.
Roberts argues that if courts are completely restricted
from releasing defendants charged with or convicted of crimes
involving domestic violence to the residence of an alleged victim,
the statute will result in unconstitutional applications. He
points out that the definition of "crimes involving domestic
violence" is broad and includes misdemeanors. He also argues that
the statutory restriction on release could be for a lengthy period
of time because appeals frequently take over a year to decide,
and may take significantly longer than that. He points out that
defendants could be restricted from living with their spouse and
children for a significant period of time for a relatively minor
offense where there was little or no danger from such a release.
Defendants might be required to give up their right to appeal in
order to live with their families.
But none of these issues are raised by Roberts' case.
Roberts' interpretation of the statute was adopted by the trial
court and Roberts was released. Roberts never argued below that
the statute was unconstitutional as applied to him, or that it had
unconstitutional applications. We accordingly conclude that this
case is not a proper vehicle for us to determine whether, in some
instances, application of AS 12.30.027(b) might be
unconstitutional. [Fn. 11] Generally, courts do not resolve
hypothetical issues. [Fn. 12] We accordingly conclude that we
should limit our decision to interpreting the statute. In the
event that application of the statute arguably conflicts with the
United States or Alaska Constitutions, we believe that these issues
should be resolved where there is an actual case or controversy.
FOOTNOTES
Footnote 1:
AS 11.41.220(a)(1)(B).
Footnote 2:
The full text of the statutes in question read as follows:
AS 12.30.027(a) reads as follows:
Before ordering release before or after trial,
or pending appeal, of a person charged with or convicted of a crime
involving domestic violence, the court shall consider the safety of
the alleged victim or other household member. To protect the
alleged victim, household member, and the public and to reasonably
assure the person's appearance, the court may impose bail and any
of the conditions authorized under AS 12.30.020, any of the
provisions of AS 18.66.100(c)(1) - (7) and (11), and any other
condition necessary to protect the alleged victim, household
member, and the public, and to ensure the appearance of the person
in court, including ordering the person to refrain from the
consumption of alcohol.
AS 12.30.027(b) reads as follows:
A court may not order or permit a person
released under (a) of this section to return to the residence of
the alleged victim or the residence of a petitioner who has a
protective order directed to the person and issued or filed under
AS 18.66.100 - 18.66.180.
Footnote 3:
See Municipality of Anchorage v. Baxley, 946 P.2d 894, 899
(Alaska App. 1997).
Footnote 4:
Krohn v. State Dept. of Fish and Game, 938 P.2d 1019, 1021
(Alaska 1997) (quoting Kodiak Seafood Processors Ass'n v. State,
900 P.2d 1191, 1196 (Alaska 1995)).
Footnote 5:
State v. McCallion, 875 P.2d 93, 98-99 (Alaska App. 1994);
Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998).
Footnote 6:
McCallion, 875 P.2d at 98.
Footnote 7:
AS 18.66.990(3) provides:
(3) "domestic violence" and "crime involving
domestic violence" mean one or more of the following offenses or a
law or ordinance of another jurisdiction having elements similar to
these offenses, or an attempt to commit the offense, by a household
member against another household member:
(A) a crime against the person under AS 11.41;
(B) burglary under AS 11.46.300 11.46.310;
(C) criminal trespass under AS 11.46.320 11.46.330;
(D) arson or criminally negligent burning under AS
11.46.400 11.46.430;
(E) criminal mischief under AS 11.46.480 11.46.486;
(F) terroristic threatening under AS 11.56.810;
(G) violating a domestic violence order under AS
11.56.740; or
(H) harassment under AS 11.61.120(a)(2) (4).
Footnote 8:
AS 18.66.990(5)(B).
Footnote 9:
AS 18.66.990(5)(G).
Footnote 10:
Peninsula Marketing Ass'n v. Rosier, 890 P.2d 567, 573
(Alaska 1995) (quoting 2A norman j. singer, sutherland statutory
construction sec. 46.06 (5th ed. 1992)).
Footnote 11:
See State v. Patterson, 740 P.2d 944, 949 n.18 (Alaska
1987); Perry v. State, 429 P.2d 249, 251-52 (Alaska 1967).
Footnote 12:
See Sonneman v. State, 969 P.2d 632, 636 (Alaska 1998)
(quoting Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska
1987)).
