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Sanford v State (06/08/2001) ap-1748
Sanford v State (06/08/2001) ap-1748
NOTICE
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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.
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PETER BRUCE SANFORD, )
) Court of Appeals No. A-7633
Appellant, ) Trial Court No. 3AN-S99-8244 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1748 - June 8, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. W. H. Hawley, Jr., 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.
COATS, Chief Judge.
When the superior court convenes a grand jury, the court
administers an oath to the grand jurors and instructs the jurors on
their powers and duties. [Fn. 1] The grand jury is to consist of
not less than twelve nor more than eighteen members. [Fn. 2] To
indict, the Alaska Constitution requires the concurrence of a
majority of the grand jurors. But how many grand jurors must concur
if the court swears in and instructs eighteen grand jurors but only
twelve actually hear the evidence and deliberate in a particular
case?
Alaska Criminal Rule 6(n)(1) requires the concurrence of
a majority of the grand jurors sworn in, not just a majority of the
jurors who deliberate on the case, to indict a defendant for a
crime. The state contends that this rule violates the Alaska
Constitution. The state argues that article I, section 8 of the
Alaska Constitution requires the concurrence of a majority of the
grand jurors who heard and voted on the case to indict. We conclude
that article I, section 8 is ambiguous on this point. Because of
this, the Alaska Supreme Court, acting in its role as administrative
head of the court system, was authorized to promulgate a rule to
clarify this point of grand jury procedure. We therefore hold that
Criminal Rule 6(n)(1) is a valid exercise of the supreme court's
rule-making authority. We conclude that Criminal Rule 6(n)(1) is
constitutional.
Factual background
On October 19, 1999, a grand jury of fifteen members
indicted Peter Bruce Sanford for robbery in the first degree,
robbery in the second degree, coercion, and three counts of assault
in the third degree. The following day, with only twelve grand
jurors present, the grand jury voted seven to five to indict Sanford
on four counts of attempted kidnapping.
Sanford moved to dismiss the indictment. Sanford argued
that Criminal Rule 6(n)(1) required a majority of the eighteen grand
jurors who were initially sworn in and instructed by the court to
vote for the indictment in order to return a true bill, the
concurrence of ten in this case. The state opposed the dismissal,
arguing that the grand jury can return an indictment with the
concurrence of a simple majority of the jurors who hear the case,
the concurrence of seven in this case. Superior Court Judge Larry
D. Card denied Sanford's motion. Sanford petitioned this court for
review; this court granted the petition. We now reverse Judge
Card's decision upholding the indictment.
Criminal Rule 6(n)(1)
Criminal Rule 6(n)(1) provides that "[a]n indictment may
be found only upon the concurrence of a majority of the total number
of jurors comprising the grand jury when the grand jury is sworn and
charged with instructions." The state concedes on appeal that
Sanford's interpretation of the rule is correct: that the rule
requires the concurrence of a majority of the grand jurors who are
sworn and instructed by the court in order to return an indictment.
We have independently reviewed the state's concession and conclude
that the state's concession is supported by both the plain language
of the rule and by our examination of the history of the rule. [Fn.
3] In short, to the extent that there is any ambiguity in the
language of the rule, the history of Rule 6(n)(1) makes it clear
that the supreme court intended for the rule to require a majority
of the grand jurors originally sworn and charged with instructions,
not a majority of the grand jurors who actually deliberated on the
case, to vote for a true bill in order to indict.
Article I, section 8 of the Alaska Constitution
The state argues that Criminal Rule 6(n)(1) violates
article I, section 8 of the Alaska Constitution. That section
provides, in pertinent part, that the "grand jury shall consist of
at least twelve citizens, a majority of whom concurring may return
an indictment." The state argues that this provision requires only
a majority of the grand jurors who deliberate on the case to return
an indictment. This would mean that the grand jury would have to
consist of at least twelve members and that a majority of those
grand jurors would have to vote in favor of the indictment. The
state argues that it is logical to assume that the drafters of the
constitution intended for the grand jury to consist of at least
twelve jurors deliberating on the case, and, to be consistent, that
a majority of these grand jurors should be determined at the same
time a majority of the grand jurors who actually decide the case.
The state argues that its interpretation is correct
because it would be unreasonable to determine the majority from the
number of grand jurors who constitute the grand jury at the time the
grand jurors are initially sworn in. The state argues that, under
this interpretation, the court could swear in and instruct twelve
grand jurors, but, if only seven grand jurors were available to hear
the evidence against a defendant, then the defendant could be
indicted by a grand jury of seven members if all of them voted to
indict.
But our review of the minutes of the Alaska Constitutional
Convention suggests Sanford's view is at least equally plausible.
The delegates to the constitutional convention were familiar with
the federal grand jury system that was in effect in the Territory
of Alaska. Under that system, the grand jury panel consisted of
sixteen to twenty-three members. [Fn. 4] An indictment required the
concurrence of twelve of the members, no matter how many grand
jurors actually constituted the original grand jury panel. [Fn. 5]
Because they were making it possible to indict a person
with a smaller grand jury of twelve rather than the larger federal
grand jury panel of sixteen to twenty-three, the delegates
considered requiring the vote of three-quarters of the members of
the grand jury to indict. [Fn. 6] But the delegates ultimately
voted to require a majority of the grand jurors to concur in order
to indict.
The minutes do not disclose that the delegates considered
whether this majority of grand jurors should be calculated from the
original panel that was sworn in or from the panel that actually
considered the evidence and deliberated on the indictment. But, as
we have stated, under the federal rule in existence at the time of
the constitutional convention, and in existence still, a majority
(twelve) of the maximum number of grand jurors (twenty-three)
originally sworn in had to vote to indict, no matter how many grand
jurors actually sat on the panel. [Fn. 7] Although the delegates
were willing to reduce the minimum number of grand jurors to twelve,
apparently to save money, there is no indication that they intended
to depart from the federal system of requiring at least a majority
of the jurors originally sworn in to concur in order to return an
indictment. Therefore the delegates might have intended to require
a majority of the grand jurors sworn and instructed to concur in
order to indict.
The minutes of the constitutional convention do not
identify which of these competing interpretations of article I,
section 8 the drafters had in mind. The constitutional provision
is ambiguous, and both interpretations are equally plausible.
Because this particular aspect of grand jury practice is left
unresolved by our constitution, we conclude that the supreme court
is empowered to resolve this question by court rule.
Article IV, section 15 of the Alaska Constitution
authorizes the supreme court to "promulgate rules governing practice
and procedure in civil and criminal cases in all courts," as long
as these rules do not contravene the constitution. Many times in
the past, the supreme court has looked to the interpretation given
to a statute by an administrative agency when attempting to resolve
an ambiguity in the statute itself. [Fn. 8] We believe that this
same principle applies here.
The supreme court is charged with formulating the
practices and procedures governing criminal cases, subject to the
provisions of the constitution. On the issue of how many grand
jurors must vote for indictment, the directive of article I, section
8 is irresolvably ambiguous. The supreme court therefore had the
authority to promulgate Criminal Rule 6(n)(1) to resolve this issue.
Accordingly, we hold that the method specified in Criminal Rule
6(n)(1) for determining the number of votes necessary for indictment
is constitutional.
The grand jury that indicted Sanford originally consisted
of eighteen members who were sworn and charged with instructions.
Of these grand jurors, only seven voted in favor of the indictment
for attempted kidnapping. Under Criminal Rule 6(n)(1), ten grand
jurors had to vote in favor of the indictment to charge Sanford with
a crime. Because only seven grand jurors voted in support of the
indictment, the indictment was invalid. We accordingly conclude
that Judge Card erred in denying Sanford's motion to dismiss the
indictment. On remand, the superior court shall dismiss the
indictment against Sanford for attempted kidnapping.
REVERSED and REMANDED.
FOOTNOTES
Footnote 1:
Alaska R. Crim. P. 6(e).
Footnote 2:
AS 12.40.020; Alaska R. Crim. P. 6(d).
Footnote 3:
Although the state concedes Sanford's interpretation of Rule
6 is correct, this court must independently review the issue. See
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Footnote 4:
sec. 66-8-2 ACLA (1949).
Footnote 5:
See 2 Proceedings of the Alaska Constitutional Convention
(PACC) 1400-02 (January 6, 1956); sec. 66-8-51 ACLA (1949).
Footnote 6:
See 2 PACC 1398-1403 (January 6, 1956).
Footnote 7:
See Federal R. Crim. P. 6(a)(1), (f).
Footnote 8:
[Fn. 9] [Fn. 10] [Fn. 11] [Fn. 12]See Lopez v. Administrator, Pub.
Employees' Retirement Sys., 20 P.3d 568, 570 (Alaska 2001) (where
a question of law involves agency expertise, a court will "defer to
the agency's interpretation of the law unless it is unreasonable");
Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983) (appendix)
(although not binding on a court, "[a] statutory construction adopted
by those responsible for administering a statute should not be
overruled in the absence of 'weighty reasons.'"); Casperson v. Alaska
Teachers' Retirement Bd., 664 P.2d 583, 586 (Alaska 1983) (Compton,
J., dissenting) ("if a statute is ambiguous, the court may give some
weight to the administrative decision" of an agency charged with
carrying out the statutory mandate) (citing Union Oil Co. v.
Department of Revenue, 560 P.2d 21, 25 (Alaska 1977)); 2B Norman J.
Singer, Sutherland Statutory Construction sec. 49:03 (6th ed. 2000)
("[P]ractical interpretation of a statute by the . . . officers
charged with its administration and enforcement . . . constitutes
an invaluable aid in determining the meaning of a doubtful
statute.").
Footnote 9:
See Lopez v. Administrator, Public Employees' Retirement
System, 20 P.3d 568, 570 (Alaska 2001)(where a question of law
involves agency expertise, a court will "defer to the agency's
interpretation of the law unless it is unreasonable"); Storrs v.
State Medical Board, 664 P.2d 547, 552 (Alaska 1983)(although not
binding on a court, "[a] statutory construction adopted by those
responsible for administering a statute should not be overruled in
the absence of 'weighty reasons'."); Casperson v. Alaska Teachers'
Retirement Board, 664 P.2d 583, 586 (Alaska 1983) (Compton, J.,
dissenting)("if a statute is ambiguous, the court may give some
weight to the administrative decision" of an agency charged with
carrying out the statutory mandate)(citing Union Oil Co. v.
Department of Revenue, 560 P.2d 21, 25 (Alaska 1977)); 2B Norman J.
Singer, Sutherland Statutory Construction sec. 49:03 6th ed. 2000)
("[P]ractical
interpretation of a statute by the . . . officers charged with its
administration and enforcement . . . constitutes an invaluable aid
in determining the meaning of a doubtful statute.").
Footnote 10:
See Lopez v. Administrator, Public Employees' Retirement
System, 20 P.3d 568, 570 (Alaska 2001)(where a question of law
involves agency expertise, a court will "defer to the agency's
interpretation of the law unless it is unreasonable"); Storrs v.
State Medical Board, 664 P.2d 547, 552 (Alaska 1983)(although not
binding on a court, "[a] statutory construction adopted by those
responsible for administering a statute should not be overruled in
the absence of 'weighty reasons'."); Casperson v. Alaska Teachers'
Retirement Board, 664 P.2d 583, 586 (Alaska 1983) (Compton, J.,
dissenting)("if a statute is ambiguous, the court may give some
weight to the administrative decision" of an agency charged with
carrying out the statutory mandate)(citing Union Oil Co. v.
Department of Revenue, 560 P.2d 21, 25 (Alaska 1977)); 2B Norman J.
Singer, Sutherland Statutory Construction sec. 49:03 6th ed. 2000)
("[P]ractical
interpretation of a statute by the . . . officers charged with its
administration and enforcement . . . constitutes an invaluable aid
in determining the meaning of a doubtful statute.").
Footnote 11:
See Lopez v. Administrator, Public Employees' Retirement
System, 20 P.3d 568, 570 (Alaska 2001)(where a question of law
involves agency expertise, a court will "defer to the agency's
interpretation of the law unless it is unreasonable"); Storrs v.
State Medical Board, 664 P.2d 547, 552 (Alaska 1983)(although not
binding on a court, "[a] statutory construction adopted by those
responsible for administering a statute should not be overruled in
the absence of 'weighty reasons'."); Casperson v. Alaska Teachers'
Retirement Board, 664 P.2d 583, 586 (Alaska 1983) (Compton, J.,
dissenting)("if a statute is ambiguous, the court may give some
weight to the administrative decision" of an agency charged with
carrying out the statutory mandate)(citing Union Oil Co. v.
Department of Revenue, 560 P.2d 21, 25 (Alaska 1977)); 2B Norman J.
Singer, Sutherland Statutory Construction sec. 49:03 6th ed. 2000)
("[P]ractical
interpretation of a statute by the . . . officers charged with its
administration and enforcement . . . constitutes an invaluable aid
in determining the meaning of a doubtful statute.").
Footnote 12:
See Lopez v. Administrator, Public Employees' Retirement
System, 20 P.3d 568, 570 (Alaska 2001)(where a question of law
involves agency expertise, a court will "defer to the agency's
interpretation of the law unless it is unreasonable"); Storrs v.
State Medical Board, 664 P.2d 547, 552 (Alaska 1983)(although not
binding on a court, "[a] statutory construction adopted by those
responsible for administering a statute should not be overruled in
the absence of 'weighty reasons'."); Casperson v. Alaska Teachers'
Retirement Board, 664 P.2d 583, 586 (Alaska 1983) (Compton, J.,
dissenting)("if a statute is ambiguous, the court may give some
weight to the administrative decision" of an agency charged with
carrying out the statutory mandate)(citing Union Oil Co. v.
Department of Revenue, 560 P.2d 21, 25 (Alaska 1977)); 2B Norman J.
Singer, Sutherland Statutory Construction sec. 49:03 6th ed. 2000)
("[P]ractical
interpretation of a statute by the . . . officers charged with its
administration and enforcement . . . constitutes an invaluable aid
in determining the meaning of a doubtful statute.").
