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Clark v. Municipality of Anchorage (5/5/00) ap-1671
Clark v. Municipality of Anchorage (5/5/00) ap-1671
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
AMY CATHERINE CLARK, )
) Court of Appeals No. A-7416
Appellant, ) Trial Court No. 3AN-99-2587 Cr
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1671 May 5, 2000]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Natalie K. Finn, Judge.
Appearances: John S. Hedland, Hedland,
Brennan, Heidman, & Cooke, Anchorage, for Appellant. Benjamin O.
Walters, Jr., Assistant Municipal Prosecutor, Carmen ClarkWeeks,
Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee.
Before: Mannheimer and Stewart, Judges, and
Rabinowitz, Senior Supreme Court Justice.
[Coats, Chief Judge, not participating.]
MANNHEIMER, Judge.
Amy Catherine Clark pleaded no contest to the charge of
driving while intoxicated. Her plea purports to be a Cooksey plea
that is, a plea that preserves her right to litigate a specified
issue on appeal. [Fn. 1] But under Cooksey and the subsequent cases
construing the Cooksey rule, the issue preserved for appeal must be
"dispositive of the entire case". [Fn. 2] If it is not, the plea
is not valid and the defendant has no right to appeal. [Fn. 3]
In Clark's case, the preserved issue is not dispositive
of the charge against her. We therefore dismiss this appeal and we
remand Clark's case to the district court, where Clark must be
afforded the opportunity to withdraw her plea and go to trial.
The claim that Clark attempted to preserve
Clark was arrested for driving while intoxicated, and she
was asked to submit to a breath test. Clark took the test, but she
claims that the test result should be suppressed because the police
did not inform her of her right to consult an attorney before
deciding whether to take the test.
Alaska law requires the police to honor an arrested
motorist's request to consult an attorney before taking the breath
test, if the motorist makes such a request. But we have repeatedly
held that if an arrested motorist does not request the opportunity
to consult an attorney before taking the breath test, the police
have no obligation to affirmatively advise the motorist of this
right. Clark argues that our prior decisions are wrongly decided.
She asserts that arrested motorists have a constitutional right to
consult an attorney before they decide whether to take the breath
test, and she further asserts that the police have a corresponding
constitutional obligation to inform motorists of this right.
Why this claim is not dispositive of the litigation
Clark was prosecuted for driving while intoxicated under
AMC 9.28.020A. This ordinance provides two alternative ways of
proving the offense. One way is to prove that the defendant
operated a motor vehicle while their blood-alcohol level was .10
percent or higher. The other way is to prove that the defendant
operated a motor vehicle while they were under the influence of
intoxicants.
If Clark prevailed on her claim that police officers are
obliged to advise arrested motorists of the right to consult an
attorney before deciding whether to take a breath test, she might
gain suppression of her breath test result. But this would not bar
the Municipality from pursuing the other theory of guilt the
theory that Clark was under the influence of intoxicants. The
record reveals that there was substantial evidence to support this
theory, even without evidence of the breath test result.
According to the stipulated facts, Clark was stopped in
the early morning hours after the police saw her driving with her
headlights off. Clark's headlights remained off even after the
driver of another vehicle flashed their headlights at her. When the
police officers contacted Clark, they immediately noted a very
strong odor of alcoholic beverages. When Clark was asked to step
from her vehicle, she told the officers that she wished to put on
her coat. Clark reached into the back seat of her car, apparently
to retrieve the coat. She continued to search the back seat area
of the car even after it was obvious that the garment was not where
she thought it was. When Clark got out of her vehicle, the officers
saw that her movements were fumbling and that she was having trouble
maintaining her balance. The officers also noted that Clark had
red, bloodshot eyes. The officers administered field sobriety tests
to Clark, and her performance on these tests corroborated the
officers' suspicions that Clark's ability to drive was impaired.
In Oveson v. Anchorage, the supreme court declared that
an issue would not be deemed "dispositive" for Cooksey purposes
unless a ruling in the defendant's favor would "result[] in the
dismissal of the charge and would ... bar[] further prosecution".
[Fn. 4] We were asked to interpret this requirement in Miles v.
State. [Fn. 5] In Miles, the defendant's suppression motion was
not dispositive of the case per se, but the government announced
that it would not pursue the case if the defendant's motion was
granted. [Fn. 6] The parties took the position "that suppression
of evidence becomes 'dispositive' if the prosecutor would decline
to pursue the case in the absence of that evidence, regardless of
the legal sufficiency of the remaining evidence." [Fn. 7]
We rejected that view of the law for several reasons, all
of which are explained in our Miles opinion. [Fn. 8] We need not
reiterate the details of our reasoning here. We merely reiterate
our conclusion:
To safeguard the proper functioning of the
Cooksey / Oveson rule, we now hold that an
issue is "dispositive" for Cooksey purposes only if resolution of
the issue in the defendant's favor would either legally preclude the
government from pursuing the prosecution or would leave the
government without sufficient evidence to survive a motion for
judgement of acquittal at the conclusion of the government's case.
We adopt a judgement of acquittal standard because it provides a
more objective benchmark than a test that hinges on the prosecutor's
strategic evaluation of the chances for a favorable verdict.
In the future, to comply with the Cooksey
/ Oveson rule, the prosecuting attorney, as an officer of the court,
must certify that the issue which the defendant proposes to appeal
is dispositive, either because a ruling in the defendant's favor
would, as a matter of law, bar continuation of the prosecution or
because a ruling in the defendant's favor would leave the government
with insufficient evidence to withstand a motion for judgement of
acquittal at the conclusion of the government's case. Both the
defense attorney and the judge must concur in the prosecutor's
assessment.
Miles, 825 P.2d at 906-07.
In Clark's case, the Municipality concedes that the issue
preserved for appeal is not "dispositive" under this definition.
Clark was charged under both clauses of the DWI statute: i.e., she
was charged with driving "under the influence" as well as driving
with a blood-alcohol level of .10 percent or higher. Because of
this, the Municipality concedes that even if Clark's breath test
result were suppressed, the Municipality would still have sufficient
evidence to survive a motion for judgement of acquittal.
Indeed, the Muncipality has never contended otherwise.
When the parties presented the negotiated plea in the district
court, the judge asked the municipal prosecutor whether the
Municipality could prove its case without the breath test evidence.
Rather than answer this question, the prosecutor told the judge that
the Municipality "would not proceed [with Clark's] case without the
breath test result".
As just explained, Miles explicitly rejects the notion
that an issue should be deemed "dispositive" simply because the
prosecutor would not pursue the case if that issue were lost. The
district court judge asked the correct question whether the
Municipality could survive a motion for judgement of acquittal
without the breath test result and now, on appeal, the Municipality
concedes that the answer is "yes". This being so, Clark's challenge
to the breath test is not a dispositive issue for Cooksey purposes.
The Municipality's assertion that the Miles rule is
unconstitutional
Although the Municipality concedes that the issue
preserved for appeal does not qualify as "dispositive" under Miles,
the Municipality urges us to reconsider and renounce Miles.
Specifically, the Municipality argues that the Miles rule violates
the constitutional doctrine of separation of powers.
The Municipality points out that the executive branch of
government has the discretionary authority to initiate and terminate
criminal prosecutions as it sees fit. In particular, the executive
branch has the discretion to dismiss a prosecution if certain key
evidence is suppressed to decide that the now-reduced chances of
obtaining a favorable verdict no longer justify the time and
resources that would be devoted to the case. According to the
Municipality, the Miles rule represents an unconstitutional
infringement on this executive branch authority.
We disagree. Miles is not concerned with the government's
authority to initiate and dismiss criminal charges. In particular,
the Miles rule does not require the Municipality to pursue the DWI
charge against Clark, nor does it require the Muncipality to dismiss
that charge. That decision remains with the attorneys representing
the Municipality. Miles and its predecessor, Oveson, do not seek
to curtail executive discretion; rather, they are concerned with the
proper working of the judicial branch.
As we explained in Miles, the Cooksey plea procedure is
a limited exception to the rule that a plea of no contest waives all
non-jurisdictional defects. [Fn. 9] Because the Cooksey procedure
allows parties to present an issue on appeal even though there has
been no trial, it is important to place limits on the kinds of cases
that can be litigated in this way. Without a narrow definition of
"dispositive", the Cooksey plea procedure would "leave[] the appellate
courts vulnerable to having the parties thrust upon us the
determination of hypothetical and abstract questions". [Fn. 10] In
addition, without a narrow definition of "dispositive", criminal
defendants could "evade the harmless error rule that would normally
govern appellate resolution of [their] evidentiary claim if [they]
went to trial". [Fn. 11]
Miles does not prevent the executive branch from
initiating and terminating criminal prosecutions as it sees fit.
Rather, Miles prevents the executive branch (and all other
litigants) from evading our law's traditional limits on the right
to demand judicial review. Miles prevents litigants from foisting
issues of law upon appellate courts in an evidentiary vacuum. In
the present case, Miles prevents Clark and the Municipality from
requiring the appellate courts of this state to decide a question
of constitutional law when the question might well be moot if
Clark's case were tried.
The right of appeal is, in essence, the right to demand
that an appellate court decide a lawsuit. [Fn. 12] The Oveson Miles
definition of a "dispositive" issue helps to maintain the traditional
limits on the right of appeal. These limits help to ensure that
important issues of law are fully litigated and carefully
considered. These limits also promote the goal of judicial
restraint the ideal that courts should not decide important issues
of law unless there is a real need to have those issues decided.
These are proper concerns of the judicial branch. Indeed,
they are proper concerns of all three branches of government, and
of society at large. The rules that limit litigants' right to
appeal ultimately promote the healthy functioning and healthy
interaction of all three branches of government. For these reasons,
we reject the Municipality's attack on Miles.
Why we are dismissing this appeal rather than exercising our
discretion to treat this case as a petition for review
When a defendant enters a non-valid Cooksey plea, this
court still has the discretion to circumvent the jurisdictional
defect by treating the "appeal" as a petition for review and then
granting the petition thus allowing us to address the merits of
the defendant's claim, even though it is not dispositive. The
question is whether we should exercise that discretion in Clark's
case.
Miles was decided in February, 1992. Eight years later,
this court is still receiving Cooksey appeals in which the preserved
issues are not "dispositive" as defined in Miles. [Fn. 13] Often,
we have simply noted the Cooksey problem and then treated these
cases as petitions for review, justifying our decision on the theory
that the parties deserved an answer to their legal question after
they had put so much time and effort into the case.
Clark's case is no exception: both she and the
Municipality have invested their resources (financial and otherwise)
to bring the matter to this stage of litigation. But any decision
to ignore the Cooksey problem has its own drawbacks. As this writer
said when dissenting in Henson v. Anchorage,
I, too, favor prompt resolution of litigation,
but I believe that we should enforce our procedural rules and refuse
to decide [this case]. While it may seem that we advance judicial
efficiency by deciding [the defendant's] case, I fear that this
advance will be more than offset by our tacit encouragement of
additional flawed Cooksey pleas in future cases.
Henson, Memorandum Opinion No. 3979, slip opinion at page 9
(Mannheimer, J., dissenting).
Clark's case presents an additional difficulty. As
explained earlier, Clark's legal claim is that an arrested motorist
has a constitutional right to consult an attorney before deciding
whether to take a breath test, and that the police are obliged to
inform the motorist of this constitutional right even if the
motorist does not ask. In the district court, the Municipality
apparently conceded that the motorist's right to consult an attorney
was based on the constitution (rather than simply deriving from
statute). But now, on appeal, the Municipality has taken a
different position. In its brief to this court and again at oral
argument, the Municipality has asserted that a motorist's right to
consult an attorney derives from statute, not from Alaska's
constitution. At oral argument, Clark's attorney complained that
he had been disadvantaged by the Municipality's about-face: he had
not made his strongest case because his opening brief was written
on the assumption that the Municipality would not contest the
constitutional basis of the right to consult counsel.
Given this circumstance, and given our concern that
parties will continue to evade or ignore the Miles rule unless we
begin to enforce it, we conclude that we should not ignore the
Cooksey defect in this case.
Because the issue preserved for appeal is not dispositive
of the litigation between the Municipality and Clark, this appeal
is DISMISSED for want of jurisdiction. And, treating the dismissed
appeal as a petition for review, that petition is DENIED.
This case is remanded to the district court for further
proceedings on the criminal complaint filed against Clark. Because
Clark entered her no contest plea on the understanding that she
would be allowed to litigate the suppression issue on appeal, and
because Clark has not received the benefit of that bargain, the
district court should allow Clark the opportunity to withdraw her
no contest plea and go to trial. [Fn. 14]
FOOTNOTES
Footnote 1:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Footnote 2:
Oveson v. Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978).
Footnote 3:
See Heuga v. State, 609 P.2d 547, 548 (Alaska 1980).
Footnote 4:
574 P.2d at 803 n.4.
Footnote 5:
825 P.2d 904 (Alaska App. 1992).
Footnote 6:
See id. at 905.
Footnote 7:
Id.
Footnote 8:
See id. at 905-06.
Footnote 9:
Miles, 825 P.2d at 905.
Footnote 10:
Id. at 906 (quoting Heuga v. State, 609 P.2d 547, 548 (Alaska
1980)).
Footnote 11:
Id. As we pointed out in Miles, in most cases "the ultimate
importance of [the contested] evidence to the litigation and, more
to the point, whether erroneous admission of the questioned evidence
would require reversal of a criminal conviction cannot be
evaluated without knowing the rest of the government's case." 825
P.2d at 906.
Footnote 12:
See Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App. 1997),
where we explained the distinction between the right to "appeal"
(i.e., to demand that an appellate court review a lower court's
decision) and the right to "petition" (i.e., to request an appellate
court to exercise its discretionary authority to review a lower
court's decision).
Footnote 13:
See Parker v. State, Alaska App. Memorandum Opinion No. 3625
(July 2, 1997); Haynes v. State, Alaska App. Memorandum Opinion No.
3818 (May 13, 1998); Henson v. Anchorage, Alaska App. Memorandum
Opinion No. 3979 (February 3, 1999); Jackson v. State, Alaska App.
Memorandum Opinion No. 4012 (March 24, 1999).
Footnote 14:
See Wells v. State, 945 P.2d 1248, 1250 (Alaska App. 1997).
