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Fowler v. State (5/23/2003) ap-1878
Fowler v. State (5/23/2003) ap-1878
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:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ERIC B. FOWLER, )
) Court of Appeals No. A-
8254
Appellant, ) Trial Court No.
4FA-S01-2022 CR
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1878 May
23, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood,
Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, 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.
STEWART, Judge.
On May 8, 2001, the Alaska Legislature passed a bill
that amended the definition of felony driving while intoxicated,
AS 28.35.030(n).1 Previously, driving while intoxicated had been
a felony if a defendant had two prior convictions within the
preceding five years. The 2001 amendment increased the look-back
period to ten years.
Under Alaska law, a bill takes effect on the 90th day
after the governor signs it, unless the legislature specifies
otherwise.2 Here, the legislature did specify otherwise: the
bill provided that the amended version of AS 28.35.030(n) would
take effect on July 1, 2001 (about eight weeks after the
legislature passed the bill). However, the legislature delayed
transmitting the bill to the governor until June 20,3 and the
governor did not sign the bill until July 3 i.e., after the
legislatures specified effective date.
On the following day July 4, 2001 Eric Fowler
committed the offense of driving while intoxicated. He had two
prior convictions within the preceding ten years, but not within
the preceding five years. Thus, Fowlers offense would be a
felony if the amended law was in effect on July 4, but only a
misdemeanor if the amended law had not yet taken effect.
Fowler argues that because the governor did not sign
the bill until after the effective date specified by the
legislature, the bill must be treated as if the legislature had
never specified a special effective date. According to this
argument, the new law must be deemed to have gone into effect on
October 1 the 90th day following the governors signature.
Alternatively, Fowler argues that even if the new law
would normally have gone into effect on the day after the
governor signed it, there was an additional delay in this case
because the following day was July 4, a state holiday. Fowler
argues that a new law cannot take effect on a holiday.
For the reasons explained here, we reject both of
Fowlers arguments. We conclude that the new version of AS
28.35.030(n) took effect at 12:01 a.m. on July 4, 2001 and that
Fowler was therefore properly charged with felony driving while
intoxicated.
A brief description of Alaska law on this subject
Article II, Section 18 of the Alaska Constitution
states: Laws passed by the legislature [normally] become
effective ninety days after enactment [, but the] legislature
may, by concurrence of two-thirds of the membership of each
house, provide for another effective date. To clarify and carry
out the mandate of this constitutional provision, the legislature
enacted AS 01.10.070.
Under subsection (b) of this statute, a bill that does
not specify a particular effective date takes effect at 12:01
a.m., Alaska Standard Time, on the 90th calendar day following
the governors signature.4 Under subsection (c), if a bill
specifies that it takes effect immediately, the bill takes effect
at 12:01 a.m., Alaska Standard Time, on the day after it is
signed by the governor.5
Subsection (d) of AS 01.10.070 deals with bills that
specify a particular effective date. The current version of
subsection (d) codifies a rule that resolves situations like the
one presented in Fowlers case:
(d) An Act that specifies a definite
effective date becomes effective at 12:01
a.m., Alaska Standard Time, on the date
specified. However, if the specified ...
effective date is on or before the day the
governor signs the Act, ... the Act becomes
effective at 12:01 a.m., Alaska Standard
Time, on the day after the governor signs the
Act ... .
The problem is that when the events in Fowlers case
arose in 2001, subsection (d) did not contain the second
sentence. Thus, the 2001 version of AS 01.10.070(d) did not
answer the question posed by this case: When does a bill take
effect if the governor fails to sign the bill until after the
legislatively specified effective date?
Although the current version of AS 01.10.070(d)
resolves this problem, the current version of the statute does
not govern Fowlers case.6 We must therefore ascertain the common
law on this topic as it existed in 2001, before AS 01.10.070(d)
was amended to resolve this situation.
Fowlers argument that the amended law took
effect 90 days after the governor signed the
bill because the governor failed to sign it
by the legislatively specified enactment date
Fowler first argues that because the 2001
version of AS 01.10.070 did not contain an explicit
rule to govern the situation presented in this case, we
must presume that the default rule applied that,
unless the legislature specifies a different date, a
statute takes effect on the 90th day after the governor
signs it.
Fowler asserts that this result follows from
the rule that an ambiguous penal statute must be
construed against the government.7 But AS 01.10.070 is
not a penal law. It is a law of general application
that governs the effective date of all statutes enacted
by the legislature, whether those statutes be criminal
or civil.
For purposes of the rule requiring resolution
of ambiguities against the government, a penal law is
one that defines an offense [or] prescribes its
corresponding ... punishment.8 This rule of
construction does not apply when the statute under
consideration is a statute of general application.9
For example, in Commonwealth v. Broughton,10 the court
held that the rule of construing ambiguities against
the government did not apply to a statute that
established proof requirements but did not define
proscribed conduct. We therefore examine AS 01.10.070
without a presumption either for or against a result
favoring Fowler.
The basic question is to ascertain what the
legislature would wish to have happen under these
circumstances.
There are two ways in which the legislature
can specify that they do not wish the usual 90-day rule
to apply. The legislature can either (1) name a
definite date on which the new law will take effect, or
(2) declare that the new law will take effect
immediately.
Obviously, if the legislature follows this
second course, the new law will not take effect
immediately. Rather, the law will take effect on the
day after the governor signs it an event that the
legislature has little control over. Thus, when the
legislature declares that a law is to take effect
immediately, it means that the law should take effect
as soon as possible, consistent with the governors role
in the enactment process.
Fowler argues that the situation is different
when the legislature specifies a date for a new law to
go into effect. He contends that, by setting a
specific future date, the legislature must mean for the
public to get a certain amount of forewarning before
the law takes effect. Thus, Fowler asserts, when the
governor does not sign the bill until the specified
date has transpired, a court must protect this desired
period of forewarning by delaying the effective date of
the law for 90 days.
But when the legislature specifies a definite
date for a new law to take effect, they normally
foresee that the governor will sign the law with time
to spare and that the new law will take effect on the
specified date, regardless of when the governor signs
it. In other words, there is no particular guaranteed
period of forewarning, no particular buffer period
between the signing of the bill and the time it takes
effect.
We believe that when the legislature goes out
of its way to specify a particular effective date, this
date does not represent an imprecise description of how
much forewarning the public should receive. Rather, it
represents the legislatures intention that the new law
should take effect on that specified date. Thus, when
that specified date has already transpired by the time
the governor signs the law, we believe it is reasonable
to assume that the legislature would want the law to
take effect as soon as possible that is, on the day
after the governor signs it. For this reason, we
conclude that Fowlers suggested 90-day waiting period
would not achieve the legislatures purpose.
In reaching this conclusion, we do not rely
on any inference that might be drawn from the fact
that, when the legislature addressed this problem, they
codified the same rule that we now adopt as a matter of
common law. However, we note that our interpretation
is consistent with the rule of construction that was
followed by the revisor of statutes up until AS
01.10.070(d) was amended to expressly resolve this
problem.
The record in this case reveals that both the
current revisor of statutes and her predecessor
encountered the problem of an after-signed law on other
occasions. Without exception, these revisors concluded
that the statutes in question should be deemed to have
taken effect on the day after the governor signed the
law. The revisors adopted this practice because they
believed that it achieved a result as close as possible
to the legislatures intended effective date[.] For
example, SLA 1995, ch. 103 specified a particular
effective date June 30, 1995 for 70 of that session
law. However, the governor did not sign the bill until
that very date. When the bill was officially enrolled,
the revisor substituted an effective date of July 1,
1995 i.e., the day after the governor signed the bill.
The legislature has apparently acquiesced
each time the revisor of statutes adjusted the
effective dates of statutes in accordance with this
practice. From this acquiescence, we conclude that the
revisors practice reflects the legislatures desired
resolution of this problem.
Applying this rule of construction, we
conclude that the new felony DWI law took effect at
12:01 a.m., Alaska Standard Time, (that is, at 1:01
a.m. Alaska Daylight Time) on July 4, 2001 the day
after the governor signed the law.
Fowlers alternative argument that a law cannot
take effect on a holiday
Fowler argues in the alternative that even if
the new felony DWI law would normally have taken effect
on the day after the governor signed it, the effective
date of this new law was delayed by one day because
July 4 was (and is) a state holiday. Fowler relies on
AS 01.10.080, which states:
The time in which an act
provided by law is required to be
done is computed by excluding the
first day and including the last,
unless the last day is a holiday,
and then [that day] is also
excluded.
Fowler contends that, pursuant to this statute, if a
new law would normally take effect on a holiday, the
effective date must be delayed by one day.
But it is plain from the wording of AS
01.10.080 that this statute is a codification of the
common-law rule governing the computation of time for
the doing of an act required by law.11 The statute
allows an additional day for the accomplishment of the
required act if the normal time limit expires on a
holiday a day when the usual operations of business
are suspended and the courts [are] closed[.]12
The effective date of a statute is not an act
that must be accomplished within a specified time
period. Thus, AS 01.10.080 does not address the
question of when a newly enacted statute takes effect.
We note that, in the past, the legislature
has expressly declared its intent to have new laws take
effect on holidays. One of the prime examples is
Alaskas present criminal code SLA 1978, ch. 166, 3 &
25 specified that the new code would take effect on
January 1, 1980.
Conclusion
For the reasons explained here, we hold that
the 2001 amendment to AS 28.35.030(n) took effect at
12:01 a.m., Alaska Standard Time, on July 4, 2001.
Because Fowler committed his offense approximately
seven hours later (at around 8:00 a.m., Alaska Daylight
Time), the new law applied to him.
The judgment of the superior court is
AFFIRMED.
_______________________________
1 See 2001 SCS CSHB 132, later enacted as SLA 2001,
ch. 63.
2 AS 01.10.070(a).
3 See 2001 House Journal 1864.
4 Alternatively, if the governor vetoes the bill, AS
01.10.070(b) provides that the bill takes effect on the 90th day
following the legislatures vote overriding the veto. And if the
governor takes no action on the bill, the bill takes effect on
the 90th day following the expiration of the time allowed for
gubernatorial action under Article II, Section 17.
5 Similarly, if the governor vetoes the bill, AS
01.10.070(c) provides that the bill takes effect on the day
following the legislatures vote overriding the veto.
6 See AS 01.10.090: No statute is retrospective
unless expressly declared therein.
7 See State v. Andrews, 707 P.2d 900, 907 (Alaska App.
1985) (ambiguities in criminal statutes must be construed against
the government); Norman J. Singer, Sutherland on Statutory
Construction 59.03, 59.04, and 59.06 (6th ed. 2000).
8 Blacks Law Dictionary, 1421 (7th ed. 1999).
9 See J. Singer, supra 59.9, at 178 n.7.
10 390 A.2d 1282, 1286 (Pa. Super. 1978).
11 See Fields v. Fairbanks North Star Borough, 818
P.2d 658, 660 (Alaska 1991).
12 David v. Sturm, Ruger & Co., 557 P.2d 1133, 1135
(Alaska 1976).
