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Alvarez v. Ketchikan Gateway Borough (04/30/2004) ap-1929
Alvarez v. Ketchikan Gateway Borough (04/30/2004) ap-1929
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SONJA ALVAREZ, )
) Court of Appeals No. A-
8603
Appellant, )
Trial Court Nos.1KE-00-B181, -B182,
) -B183 CR; 1KE-02-402 CI
v. )
) O P I N I
O N
KETCHIKAN GATEWAY BOROUGH, ) )
)
)
Appellee. )
[No. 1929 April 30, 2004]
)
Appeal from the District Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Sonja Alvarez, pro se, for
Appellant. Scott A. Brandt-Erichsen, Borough
Attorney, Ketchikan Gateway Borough,
Ketchikan, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Sonja Alvarez was convicted of violating two Ketchikan
Gateway Borough ordinances for permitting her dog to run loose
and bite a pedestrian, Larry Johnson. She was also convicted of
failing to report this dog bite to the Borough Animal Protection
Department.
After a bench trial, Superior Court Judge Michael A.
Thompson, sitting in the district court, found that Alvarez had
not been negligent in connection with her dog running loose and
biting Johnson. Nevertheless, Judge Thompson convicted Alvarez
of violating the two Borough ordinances, ruling that they were
strict liability offenses and that no proof of negligence was
required.
Alvarez argues that the court erred in ruling that
these violations were strict liability offenses. We agree, and
therefore reverse these two convictions based on Judge Thompsons
finding that Alvarez was not negligent.
Alvarez also argues that her rights to a speedy trial
and equal protection of the laws were violated. We find no
merit to these claims. We therefore affirm Alvarezs conviction
for failing to report the dog bite promptly to the Animal
Protection Department.
Facts and proceedings
On August 29, 2001, at about 8 p.m., Johnson was
walking home along Nadeau Street in Ketchikan when Alvarezs
German Shepherd, Carmen, growled at Johnson as he passed by
Alvarezs house. Carmen lunged at Johnson, causing Johnson to
jump from the sidewalk to the street, where Carmen bit him on
the leg, tearing his pants.
A neighbor, Leonard Ward, yelled at Carmen, hit the
dog with his baseball cap, and chased it off. Alvarez
subsequently came out of her house, called the dog, and put it
in the house.
Alvarez apologized to Johnson and offered to pay for
his medical bills and replace his torn sweat pants. Johnson
went to the hospital emergency room for treatment. The staff at
the hospital cleaned and dressed the wound and gave Johnson a
shot. The wound did not require stitches.
Alvarez was unaware at the time of this incident that
her dog was loose in the yard. However, she knew she was
required to contact the Animal Protection Department to report
the dog bite, but did not do so. She apparently assumed,
correctly, that the hospital would notify Animal Protection.
At the hospital, an Animal Protection officer examined
and photographed Johnsons wound and took his statement. The
officer then tried unsuccessfully for two days to contact
Alvarez to ensure that her dog was quarantined. Once the
officer reached Alvarez, she cooperated with the quarantine.
The Borough ultimately charged Alvarez with three
minor offenses:1 failure to report a dog bite,2 failure to
properly restrain an animal,3 and allowing an animal to molest
(in this case, bite) a person.4 Alvarez was convicted of these
offenses at a bench trial before Judge Thompson and fined $250,
with $150 suspended, for a total fine of $100. She was also
ordered to pay $88.21 in restitution to Johnson for his medical
expenses.
Alvarez appeals her convictions.
Did the district court err by convicting Alvarez even
though the court found that she was not negligent?
Alvarez argues that Judge Thompson erred in concluding
that count II (the leash law violation) and count III (the dog
bite violation) were strict liability offenses. She argues that
Judge Thompson should have acquitted her of these offenses after
he found that the violations were not due to her negligence.
Judge Thompson found that Alvarez had not negligently
allowed her dog to escape the house and bite Johnson. That is,
he found that Carmen was, as far as Alvarez knew, properly
restrained and unable to escape from the curtilage of Alvarezs
home. Nevertheless, the court convicted Alvarez of these
violations after ruling that they were strict liability offenses.
The Ketchikan Gateway Borough leash law, KGB
20.70.005, provides that a person who owns or is responsible for
a dog shall not permit [the] dog to be at large in certain
specified areas.5 The anti-molestation ordinance, KGB
20.80.010, provides that a person who owns or is responsible for
an animal shall [not] permit or allow such animal ... [t]o molest
a person. The Borough argues that these are strict liability
offenses because they do not specify a culpable mental state.6
Alvarez argues that the verbs permit and allow imply a culpable
mental state of at least negligence.
We agree with Alvarez. The verbs permit and allow are
commonly understood to imply some volition on the part of the
actor. And other jurisdictions having similar laws laws
providing that the owner of an animal shall not permit, allow or
suffer the animal to run at large require proof of at least
negligence.7
The Borough has offered no persuasive legal authority
or legislative history that convinces us that the drafters of
the Ketchikan ordinances intended to depart from this well-
settled rule. We therefore reverse Alvarezs convictions on count
II and count III based on Judge Thompsons finding that the
violations were not caused by Alvarezs negligence.
Was Alvarezs right to a speedy trial violated?
Alvarez next argues that her statutory and
constitutional rights to a speedy trial were violated. We first
address Alvarezs statutory speedy trial claim.
Alaska Criminal Rule 45(b) requires a defendant to be
brought to trial within 120 days. The critical dispute in
Alvarezs case is when that 120-day period commenced. Alvarez
argues, relying on Alaska Criminal Rule 45(c)(6), that the period
began to run on October 3, 2001, when she demanded a jury trial.
The Ketchikan Gateway Borough argues, relying on Criminal Rule
45(c)(2), that the clock started to run on February 25, 2002,
when the Boroughs second complaint was served on Alvarez (as
explained below, the Boroughs first complaint was dismissed on
Alvarezs motion).
The relevant procedural history
On September 5, 2001, the Borough filed a civil
complaint against Alvarez, seeking civil penalties for her
violations of the three Borough ordinances. Alvarez moved to
dismiss the case, arguing that these violations were criminal and
should be charged as minor offenses. The Borough did not object
to reclassifying the case as criminal. On October 17, 2001,
District Court Judge Kevin G. Miller dismissed the civil case and
ordered that the case be reopened as charging the violation of
minor offenses.
Between October 24, 2001, and December 14, 2001,
Alvarez filed three motions to dismiss, alleging: (1) that the
Ketchikan Borough had no power to enact the animal control
ordinances she was charged with violating; (2) that the Boroughs
complaint violated Alaska Criminal Rule 3(a) because it was not
signed by a judge or magistrate; and (3) that she had been
denied her right to equal protection of the laws because her
prosecution was racially motivated. On January 4, 2002,
Superior Court Judge Trevor N. Stephens, sitting in the district
court, denied Alvarezs motion alleging that the Borough had no
power to enact the animal control ordinances at issue. However,
several days later, on January 10, 2002, he granted Alvarezs
motion alleging that the complaint did not comply with Criminal
Rule 3(a) and dismissed the case without prejudice. Judge
Stephens invited Alvarez to resurrect her motions to dismiss if
the Borough re-filed its complaint. Twenty days later, on
January 30, 2002, the Borough did re-file its complaint, but
Alvarez was not served with a summons on that complaint until
February 25, 2002.
On March 12, 2002, Alvarez filed three motions renewing
her claims that the Borough had acted outside its authority in
enacting the ordinances she was charged with violating. She
also re-filed her still undecided motion to dismiss based on a
violation of her right to equal protection. On that date,
Alvarez also moved for a protective order to bar the Borough from
admitting evidence of other reports in her Animal Protection
Department file, demanded a jury trial, and requested a change
of judge. The case was eventually assigned to Judge Thompson,
who denied all Alvarezs pending motions on June 7, 2002.
On July 26, 2002, Alvarez filed a motion to dismiss for
violation of Rule 45. She argued that the Rule 45 clock had
started on October 3, 2001, when she pleaded not guilty to the
initial civil complaint and demanded a jury trial. Alternatively,
she argued that the 120-day period began to run on November 13,
2001, when she entered her not guilty plea at arraignment.
Alvarez argued that in either case, after subtracting the various
periods excluded under Rule 45(d), the Borough had failed to
bring her to trial within the required 120 days.
Judge Thompson agreed and dismissed Alvarezs case.
Because it was unclear when Alvarez was initially cited, Judge
Thompson ruled that the 120-day period had started to run on
October 3, 2001, when Alvarez demanded trial.
The Borough moved for reconsideration of Judge
Thompsons order, but Judge Thompson reaffirmed his dismissal.
He reasoned that even if the speedy trial clock re-started when
Judge Stephens dismissed the case on January 10, 2002, and even
allowing the Borough a reasonable period to re-institute its
case, Alvarez had not been brought to trial within the required
120-day period.
The Borough appealed this decision to the superior
court. Superior Court Judge Larry R. Weeks reversed the district
courts decision and remanded the case. Judge Weeks ruled that
under Rule 45(c) the speedy trial clock started on February 25,
2002, the day Alvarez was served with the Boroughs second
complaint, which followed Judge Stephenss dismissal of the case
on Alvarezs motion.
Why we agree with Judge Weekss decision
Rule 45(b) requires a defendant charged with a felony,
misdemeanor, or violation to be tried within 120 days from the
time set forth in paragraph (c) of this rule. Subsection (c)
provides in relevant part:
(1) Generally. Except as provided in
subparagraphs (2) through (5), the time for
trial shall begin running, without demand by
the defendant, from the date the charging
document is served upon the defendant.
(2) Refiling of Original Charge. If a
charge is dismissed by the prosecution, the
refiling of the charge shall not extend the
time. If the charge is dismissed upon motion
of the defendant, the time for trial shall
begin running from the date of service of the
second charge.[8]
....
(6) Minor Offenses. In cases involving
minor offenses under District Court Criminal
Rule 8, the defendant must be tried within
120 days from the date the defendants request
for trial is received by the court or the
municipality, whichever
occurs first.
Alvarez argues that her case is governed by Rule
45(c)(6), and that none of the other subsections of Rule 45(c)
applies to minor offenses. Therefore, she argues, the speedy
trial clock started on October 3, 2001, the date she demanded
trial, and did not restart after the case was dismissed on her
motion, re-filed, and re-served, as would be the case with all
non-minor misdemeanor and felony offenses under Rule 45(c)(2).
She contends that this special treatment for violations makes
sense because it prevents minor offenses from linger[ing] in the
court system.
While this may be a reasonable construction of Criminal
Rule 45(c)(6), it was not the supreme courts intent in enacting
that provision. Before 2001, when the supreme court adopted
subsection (c)(6) and its parallel provision, District Court
Criminal Rule 8(p), minor offenses were treated the same as all
other offenses for speedy trial purposes that is, the time for
trial began to run from the date the charging document was served
on the defendant.9 However, in cases involving minor offenses,
the government had difficulty meeting this deadline because
defendants often did not request a trial until well into the 120-
day period.10 To address this problem, the supreme court amended
the rule to establish a later start date for the speedy trial
period in cases involving minor offenses the date the defendant
demanded trial.
There is nothing in the rule language or history to
suggest that the supreme court, in remedying this specific
problem, also intended to broadly exempt minor offenses from the
provisions of Rule 45(c)(2)-(5). Indeed, the unqualified
language in District Court Criminal Rule 8(p) The right to
speedy trial on minor offenses is governed by Criminal Rule 45
suggests that the court did not intend such a sea change.11 We
therefore reject Alvarezs claim that minor offenses are exempt
from Rule 45(c)(2).
Rule 45(c)(2) unambiguously provides that if a charge
is dismissed on the defendants motion, the time for trial shall
begin running from the date of service of the second charge.12
Applying this rule in Alvarezs case, the speedy trial period
began on February 25, 2002, the date she was served with the
Boroughs second complaint, which followed the dismissal of the
first complaint on Alvarezs motion. Therefore, even assuming
Alvarezs other challenge to Judge Weekss speedy trial calculation
has merit,13 only 101 days had elapsed at the time Judge Weeks
reinstated Alvarezs case. We therefore agree with Judge Weekss
decision to reverse the ruling of the district court.
Why we agree with Judge Thompsons decision on
remand
Judge Weeks remanded Alvarezs case to the district
court on December 20, 2002, and Alvarez went to trial on March
17, 2003. At trial, Alvarez again moved to dismiss her case on
Rule 45 grounds because of the additional time, disregarding
exclusions, that had elapsed between Judge Weekss remand and her
trial date by her calculations, an additional 51 days. Judge
Thompson ruled that Rule 45 had not been violated.
Under Criminal Rule 45(c)(4), the speedy trial clock
restarts when a case is remanded for trial following an appeal.
Alvarezs case was remanded to the district court on December 20,
2002, and went to trial three months later, on March 17, 2003.
Alvarez was therefore brought to trial well within the 120-day
speedy trial period.
Why we also reject Alvarezs constitutional speedy
trial claim Alvarez also argues that her state
constitutional right to a speedy trial was violated because her
trial did not take place until eighteen months after the Borough
filed its original civil complaint.14 Judge Thompson also
rejected this claim.
Even if a defendant is brought to trial within the
limits established by Rule 45, in rare cases the delay in trial
might still have prejudiced the defendant to such an extent that
the defendants constitutional speedy trial right was violated.15
The supreme court has ruled that an unexplained delay of fourteen
months or more is presumptively prejudicial,16 and that, without
an affirmative showing of prejudice, a delay of eight months or
less is presumptively non-prejudicial.17 Any periods of delay
caused by the defendant are excluded from this calculation.18
Only after a defendant has established either actual prejudice or
a presumption of prejudice do Alaska courts consider if the delay
amounted to a constitutional violation.19 This is done by
balancing the four factors enunciated in Barker v. Wingo:20 (1)
the length of the delay, (2) the reasons for the delay, (3) the
defendants assertion of his or her right, and (4) the prejudice
to the defendant.21
Alvarezs constitutional right to a speedy trial
attached at the earliest on September 5, 2001, when the Borough
filed its first complaint.22 That was more than eighteen months
before Alvarezs trial date. However, close to five months of the
delay between October 3, 2001, and July 26, 2002, when Alvarez
filed her speedy trial motion, were attributable to Alvarezs
numerous motions to dismiss. Nearly five more months passed
between Judge Thompsons dismissal which resulted from Alvarezs
motion and Judge Weekss reversal of that dismissal. Then,
after the case was remanded, there was a delay of more than two
months while Alvarezs fifth motion to dismiss was pending. All
told, Alvarez caused more than twelve of the eighteen months of
delay. When these delays are subtracted from the total, only
about six months of delay can be attributed to the government.
As we noted earlier, a delay of eight months or less is
presumptively non-prejudicial, absent actual prejudice.
Alvarez argues that she was prejudiced because she
could not locate a neutral witness, Leonard Ward, who she claimed
lived across the street from her for many months after the dog
bite incident but then moved to an unknown address. Alvarez made
no offer of proof in district court about how Wards testimony
would have benefited her defense; nor did she specify what
efforts, if any, she made to locate Ward or preserve his
testimony. Moreover, from our review of the record, it appears
that Wards testimony would have related only to the dog bite, not
to Alvarezs failure to report that bite. If this is the case,
then Alvarezs claim of prejudice is moot, because we have
reversed her convictions for violating the leash and dog bite
ordinances.
Alvarez additionally claims that she was prejudiced
because the delay in trial caused her stress and disrupted her
life. Again, even assuming this is true, Alvarez has not shown
how this disruption in her life prejudiced her defense. And, as
Alvarez concedes, she never asked the court to set an earlier
trial date. Given these circumstances, we find no merit to
Alvarezs constitutional speedy trial claim.
Was Alvarezs right to equal protection violated?
Alvarez also argues that her constitutional right to
equal protection of the laws was violated. Before trial, she
filed a motion to dismiss on this ground, arguing that Eugene
Martin, the director of the Animal Protection Department in
Ketchikan, had singled her out for prosecution based on her
Mexican-American ancestry. To support this claim, she asserted
that her dog had, on two occasions, been denied space at the
Borough kennel. She also asserted that there had been some fifty
dog bites per year in Ketchikan in 1999, 2000, and 2001, and that
she was the only person who had ever been prosecuted. She
additionally asserted that she had been discriminated against
because an ordinance enacted after the dog bite incident was not
applied in her case.
Judge Thompson denied Alvarezs motion, ruling that her
assertions were unsupported, and that even if they were
supported, they would fail to establish a prima facie case of
discrimination. We agree with this ruling. A person cannot
establish a prima facie case of racial discrimination without
showing some nexus between the discriminatory treatment and
race.23 In this case, Alvarez asserted in her pleadings that
she had been treated differently than other owners of biting
dogs, but she offered no evidence to support an inference that
this treatment was motivated by her racial heritage.
In any event, even if Judge Thompson had erred in
ruling that Alvarez had failed to establish a prima facie case of
racial discrimination, that error would be harmless because
Alvarez was allowed to fully litigate her claim. After hearing
Alvarezs evidence on this issue, and the Boroughs response which
included evidence that it had issued numerous other dog bite
citations Judge Thompson concluded that Alvarez had not been
discriminated against. Alvarez has not challenged that ruling on
appeal.
Conclusion
We REVERSE Alvarezs convictions on count II and count
III. In all other respects, we AFFIRM the decisions of the
district court.
_______________________________
1The municipal ordinances Alvarez was convicted of
violating are minor offenses under District Court Criminal Rule
8(b) because they are classified as violations and cannot result
in incarceration, loss of a valuable license, or a fine of
greater than $500.
2Ketchikan Gateway Borough Code (KGB) 20.50.020.
3KGB 20.70.005.
4KGB 20.80.010(a).
5KGB 20.70.005(a).
6The Borough relies by analogy on AS 11.81.600(b), which
provides that violations that specify no culpable mental state or
otherwise demonstrate a legislative intent to dispense with the
requirement of a culpable mental state, are strict liability
offenses. Alaska Statute 11.81.600 only applies to Title 11
offenses. See AS 11.81.640.
7See Annotation, Owners liability under legislation
forbidding domestic animals to run at large on highways, as
dependent on negligence, 34 A.L.R.2d 1285 4, at 1289-91 (1954)
and Later Case Service 4, at 669-73 (2001).
8Emphasis added.
9See former Alaska R. Crim. P. 45(c)(1) (2000); Supreme
Court Order No. 1422 (effective April 15, 2001).
10 See October 22, 1999, memorandum proposing a revision of
the 120-day rule for minor offenses, submitted to Court Rules
Attorney Christine Johnson by Clerk of Court Charlene Dolphin;
see also February 2, 2001, proposal to amend District Court
Criminal Rule 8(p), submitted to the Supreme Court by Rules
Attorney Barbara Hood.
11 District Court Criminal Rule 8(p) provides:
Speedy Trial When Time Commences to Run. The
right to speedy trial on minor offenses is
governed by Criminal Rule 45. A defendant charged
with a minor offense must be tried within 120 days
from the date the defendants request for trial is
received by the court or the municipality,
whichever occurs first.
12 Emphasis added.
13 Alvarez argues that Judge Weeks erred in excluding the
14 days from May 10, 2002, to May 23, 2002, because she had
requested a postponement of the May 10 pre-trial conference.
Alvarez claims that she was unaware that her postponement request
would constitute a continuance, and that Judge Weeks should not
have excluded this period because of Criminal Rule 45(d)(2).
Criminal Rule 45(d)(2) provides that [a] defendant without
counsel shall not be deemed to have consented to a continuance
unless the defendant has been advised by the court of the right
to a speedy trial under this rule and of the effect of consent.
We find it unnecessary to address this claim; even if Judge Weeks
had erred in excluding these 14 days, only 101 days out of the
120-day Rule 45 period would have elapsed on the date of his
decision.
14 Alaska Const. art. I, 11.
15 Deacon v. State, 575 P.2d 1225, 1229 (Alaska 1978).
16 Rutherford v. State, 486 P.2d 946, 951-52 (Alaska 1971);
Glasgow v. State, 469 P.2d 682, 688-89 (Alaska 1970).
17 Nickerson v. State, 492 P.2d 118, 120 (Alaska 1971);
Tarnef v. State, 492 P.2d 109, 112-13 (Alaska 1971).
18 Rutherford, 486 P.2d at 952 n.15; Springer v. State, 666
P.2d 431, 435 (Alaska App. 1983).
19 State v. Mouser, 806 P.2d 330, 340 (Alaska App. 1991).
20 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
21 Mouser, 806 P.2d at 340.
22 See id. at 339.
23 See Johnson v. State, 607 P.2d 944, 947 (Alaska 1980);
cf. Rollins v. Alcoholic Beverage Control Board, 991 P.2d 202,
210 (Alaska 1999); Gates v. City of Tenakee Springs, 822 P.2d
455, 461 (Alaska 1991); Barber v. Anchorage, 776 P.2d 1035, 1040
(Alaska 1989); State v. Reefer King Co., Inc., 559 P.2d 56, 65
(Alaska 1976); Belgarde v. State, 543 P.2d 206, 208 (Alaska
1975); Nelson v. State, 387 P.2d 933, 935 (Alaska 1964).
