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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| THOMAS A. WILLIAMS, | ) |
| ) Court of Appeals No. A-9139 | |
| Petitioner, | ) Trial Court No. 3AN-04-3858 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) |
| ) No. 2074 - November 24, 2006 | |
Petition for review
from the District Court, Third Judicial
District, Anchorage, Sigurd E. Murphy,
Judge.
Appearances: Brian T. Duffy, Law Office of
Dan Allan, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Cynthia M. Hora and Christine M. Pate,
Alaska Network on Domestic Violence and
Sexual Assault, Sitka, as amicus curiae
aligned with the State.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
This petition raises constitutional challenges to a
statute, AS 12.30.027(b), that prohibits all persons charged with
domestic violence from returning to the residence of the alleged
victim while on pre-trial release regardless of the
circumstances of the offense and without any opportunity for
judicial review.
Thomas A. Williams was charged almost two and one-half
years ago with assaulting his wife of twenty-three years. He is
apparently still awaiting trial. As required by AS 12.30.027(b),
one of the conditions of his pre-trial release forbids him from
returning to the residence he shared with his wife and daughter.
Williams argues that this condition violates the equal protection
clause of the federal and state constitutions because it burdens
the liberty interests of individuals who pose no danger to the
alleged victim. He also argues that his right to procedural due
process was violated because he was deprived of a fundamental
liberty interest the right to live at home with his family
without the opportunity for a meaningful hearing. Because we
agree that AS 12.30.027(b) violates Alaskas guarantee of equal
protection of the laws, we reverse the decision of the district
court.
Facts and proceedings
On April 21, 2004, the police responded to a report by
a passerby that a man was strangling a woman in a house on
Henderson Loop in Anchorage. When the police arrived at the
house, they contacted Terese Williams. Williams said her
husband, Thomas Williams, had grabbed her around the neck during
an argument and pushed her to the ground. She said he kept a
firm grip on her throat and squeezed for several minutes and that
she was very scared. Then he let go and she got up. She was
shaken and went to smoke a cigarette; her husband grabbed his
bags and left. She said her husband worked in Point Mackenzie
and stayed with a friend while he was there. She also told the
police her husband had consumed some cough medicine and beers
before the incident. The investigating officer noted that
Terese Williams was visibly shaken and had a scratch on her chin,
a finger impression under her right ear, and a small red mark on
the left of her neck.
Based on these allegations, Thomas Williams was
charged with fourth-degree assault.1 The conditions of his pre-
trial release barred him from contacting his wife or returning to
the residence they had shared.
Several weeks after his release, Williams asked the
court to modify his release conditions so he could have contact
with his wife. His attorney said Williams and his wife had been
together for more than twenty years and that both parties wished
to renew contact. The State did not oppose the request. The
prosecutor told the court that in looking at Mr. Williamss record
and the facts in this case, the State [is] confident or at least
hopeful that it was an isolated incident. The court modified
the bail conditions to allow contact, but emphasized that, by
statute, Williams was still barred from the residence.
Several months later, Williams asked the court for
permission to stay in the residence to care for the house and dog
while his wife and daughter were in London. Williamss wife
supported the request, and the State did not oppose. The court
also granted that request.
On December 23, 2004 eight months after the incident
Williams, again with his wifes support, asked the court for
permission to return to the residence for Christmas. He also
filed a motion challenging the constitutionality of
AS 12.30.027(b). Williams argued that the statute infringed his
fundamental right to maintain his marital relationship and
violated his rights to both due process and equal protection of
the laws. He also argued that the statute violated the
constitutional right of victims to be treated with dignity and
fairness.
In support of Williamss request to return home for
Christmas, Terese Williams told the court that she and Williams
had been in contact for seven months, that they had seen each
other regularly, and that maintaining separate residences was a
financial burden. She said she and her husband had taken
vacations together outside Alaska while this case was pending and
that she did not feel her husband was a threat. She said their
older daughter was coming home for the holidays and that it would
be costly to find a place outside the residence for the family to
be together.
Relying on AS 12.30.027(b), District Court Judge
Sigurd E. Murphy denied Williamss request to return to the
residence. The court then scheduled a hearing on Williamss
motion challenging the constitutionality of the statute.
That hearing was held in January 2005. At the
hearing, Terese Williams reiterated that she had been in regular
contact with her husband and that she did not feel he was a
threat. She said Williams was in counseling and that it was her
wish that he return to the residence. She also asserted that the
police and witnesses had exaggerated the seriousness of the
incident. The State opposed the motion but did not present any
evidence. The prosecutor simply observed that the domestic
violence in the home had escalated, noting that Williams had
threatened his wife with a fire poker in 2002 (he was convicted
of disorderly conduct for that offense), and was now charged with
assault for strangling his wife.
On February 2, 2005, Judge Murphy denied the motion.
Judge Murphy interpreted the residence restriction in AS
12.30.027(b) as applying only in cases in which the court had
already determined under AS 12.30.020 and AS 12.30.027(a) that
release of the accused on his or her own recognizance or with an
unsecured appearance bond would pose a danger to the alleged
victim or other household member or not reasonably assure the
accuseds appearance in court. Having construed the statute in
this manner, Judge Murphy found no deprivation of equal
protection or due process. He also found that the bail condition
barring Williams from returning home was appropriate given the
facts of this case and Williamss previous conviction for
disorderly conduct. Williams filed a motion for reconsideration,
which the court denied.
Williams then filed this petition for review, which we
granted.
Discussion
The residence restriction in AS 12.30.027(b)
applies to all persons charged with or
convicted of a crime involving domestic
violence
As noted above, Judge Murphy held that the residence
restriction in AS 12.30.027(b) does not apply to every person
charged with a crime of domestic violence. He adopted a narrower
reading of the statute, ruling that courts are only required to
bar a person charged with domestic violence from the home of the
alleged victim if the court first finds that the person is too
dangerous, or too much of a flight risk, to be released on his or
her own recognizance or with an unsecured appearance bond.
We disagree with this reading of the statute. By its
plain language, AS 12.30.027 applies to the release of all
persons charged with or convicted of crimes of domestic violence,
including those released without conditions:
(a) 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 persons
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),[2] 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.
(b) 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.[3]
Under the first sentence of subsection (a), a court is
required, in every domestic violence case, to consider the safety
of the alleged victim or other household member before releasing
the accused. Under the second sentence, the court may impose
bail or any of the release conditions authorized under AS
12.30.020 or certain provisions of AS 18.66.100(c) if those
conditions are needed to protect the victim or others or to
ensure the accuseds appearance in court. Thus, both the first
and second sentences of AS 12.30.027(a) encompass persons who
are subjected to release conditions and persons who are released
on their own recognizance or with an unsecured appearance bond.
Because subsection (a) encompasses both groups, subsection (b),
which applies to a person released under (a), does as well. We
therefore conclude that AS 12.30.027(b) applies to all persons
charged with or convicted of a crime involving domestic violence.
However, in this case we are only asked to consider the
application of AS 12.30.027(b) to a person on pre-trial release.
Why AS 12.30.027(b) violates Alaskas
guarantee of equal protection to the extent
that it categorically forbids a person on
pre-trial release for domestic violence from
returning to the home of the alleged victim
Williams argues that AS 12.30.027(b) violates the
equal protection clause of the federal and state constitutions
because it sweeps too broadly, infringing the liberty interests
of persons who pose no threat of future violence.4
The State and Amicus Curiae counter that the residence
restriction treats all members of Williamss class persons on
release on a charge of domestic violence identically. While
this is true, it misses the point: Williamss claim is that the
statute is impermissibly overinclusive, in that it burdens
individuals who are not similarly situated with respect to the
purposes of the statute.5
Article I, section 1 of the Alaska Constitution
provides that all persons are entitled to equal rights,
opportunities, and protection under the law. In evaluating
whether legislation violates this guarantee, we apply a flexible
three-part test that is dependent on the importance of the rights
involved:
First, it must be determined at the
outset what weight should be afforded the
constitutional interest impaired by the
challenged enactment. ... Depending upon the
primacy
of the interest involved, the state will
have a greater or lesser burden in
justifying its legislation.
Second, an examination must be
undertaken of the purposes served by [the]
challenged statute. Depending on the level
of review determined, the state may be
required to show only that its objectives
were legitimate, at the low end of the
continuum, or, at the high end of the scale,
that the legislation was motivated by a
compelling state interest.
Third, an evaluation of the states
interest in the particular means employed to
further its goals must be undertaken. Once
again, the states burden will differ in
accordance with the determination of the
level of scrutiny under the first stage of
analysis. At the low end of the sliding
scale, we have held that a substantial
relationship between means and ends is
constitutionally adequate. At the higher
end of the scale, the fit between means and
ends must be much closer. If the purpose
can be accomplished by a less restrictive
alternative, the classification will be
invalidated.[6]
As noted earlier, Williams asserts that he has a
fundamental right to live at home with his wife and family while
on pre-trial release and that any government infringement of that
right must be strictly scrutinized.
We have previously subjected restrictions on marital
association to heightened scrutiny. In Dawson v. State,7 we
observed that [a] condition of probation restricting marital
association plainly implicates the constitutional rights of
privacy, liberty, and freedom of association and ... must be
subjected to special scrutiny.8
The State nevertheless argues that no fundamental
right is at stake in this case because Williamss conditions of
release permit him to see his wife just not in their home.
Hence, the State argues, the residence restriction has at most a
modest, incidental, and temporary effect on the marital
relationship. This argument understates the integral relationship
between cohabitation and marriage. Moreover, apart from any
burden imposed on Williamss relationship with his wife and
family, Williams has a liberty interest in choosing his family
living arrangements.
In Moore v. City of East Cleveland,9 the United States
Supreme Court addressed a city ordinance that limited the
occupancy of a dwelling to members of a single family.10 While
that limitation in itself is unremarkable, this ordinance defined
family so narrowly that it forbade Inez Moore from living in her
home with her son and two young grandsons because the grandsons
were cousins, not brothers.11 When Moore refused to remove the
offending grandson from her home, she was convicted of a crime.12
The Supreme Court rejected the citys claim that it was required
to uphold the ordinance if it bore a rational relationship to
permissible government objectives:
When a city undertakes such intrusive
regulation of the family ... the usual
deference to the legislature is
inappropriate. This Court has long
recognized that freedom of personal choice
in matters of marriage and family life is
one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment.
.... Of course, the family is not beyond
regulation. But when the government
intrudes on choices concerning family living
arrangements, this Court must examine
carefully the importance of the governmental
interests advanced and the extent to which
they are served by the challenged
regulation.[13]
This liberty interest does not disappear because a
person has been charged with a crime.14 We hold based on this
authority that Williams has an important, if not fundamental,
right to live in his home with his wife and family while on pre-
trial release,15 and that any state infringement of that right
must be carefully scrutinized.16
There is no legislative history to illuminate the
legislatures purpose in enacting the residence restriction in AS
12.30.027(b). But the State undoubtedly has a legitimate and
compelling interest in preventing domestic violence and in
preventing a person accused of domestic violence from tampering
with the alleged victims testimony.17 On the other hand, the
government has no legitimate interest in barring a person who
poses no appreciable risk of harming or intimidating the victim
from returning to a shared residence.18 Given the importance of
the right to live with a member of ones family, we will
invalidate the classification if we find an insufficiently tight
fit between the purposes of the statute and the means used to
accomplish those purposes and if less restrictive alternatives
are available.19
The State argues that a blanket prohibition on
returning to the alleged victims residence is necessary because
of the peculiar dynamics of domestic violence in particular, the
well-documented tendency of victims to remain with their abusers.
The State argues that the victims of domestic violence are
influenced by psychological and emotional forces that too often
make impossible an accurate assessment of whether the victims
safety can be assured if the defendant is allowed to return to
[the] residence. The State concludes that a courts evaluation
of whether a defendant poses a risk to the alleged victim is
therefore likely to be little more than an educated guess.
We agree that it can be difficult for judges to accurately
predict whether a particular defendant will be dangerous in the
future.20 But judges confront this task countless times each day
throughout the American system of criminal justice21:
The trial court is not only the traditional
but also the superior tribunal for the kind
of information-gathering which a sound
foundation for a bail ruling almost
inevitably requires. For it is there that,
at a hearing, the judge can come face-to-
face with the primary informational sources,
and probe for what is obscure, trap what is
elusive, and settle what is controversial.
It is there, too, that the judge has at his
disposal the judicial machinery necessary to
marshal the facts typically relevant to the
release inquiry.[22]
As the State points out, courts are not obliged to
credit a victims assertion that her abuser is no threat even if
that testimony is undisputed. And in this case, in urging us to
affirm the district court, the State lists ample circumstantial
evidence Judge Murphy could have relied on to discredit Terese
Williamss statements: the couples lengthy marriage; Terese
Williamss testimony about the financial strain of maintaining
separate residences; Williamss prior conviction for threatening
his wife with a fire poker; the fact that Terese Williams had
resumed living with Williams after that prior incident; the
eyewitness reports that Williams had strangled his wife; and the
investigating officers observations of Terese Williamss injuries.
Under the Alaska Statutes, once a court determines
that a person charged with domestic violence poses a risk to the
alleged victim, the court is authorized to impose numerous
conditions of release (including removing the person from the
victims residence23). The court may appoint a third party
custodian to supervise the accused person24; restrict the persons
travel, association, or living arrangements25; require the
person to return to custody after daylight hours26; prohibit the
person from committing, or threatening to commit, domestic
violence, stalking, or harassment27; prohibit the person from
contacting the victim28; direct the person to stay away from the
victims residence, school, car, or place of employment29;
prohibit the person from possessing a firearm or consuming
alcohol30; or impose any other condition reasonably necessary to
assure the alleged victims safety.31 Before imposing any of
these conditions, the court must assess the risk the accused
person poses to the alleged victim, taking into account the
possibility perhaps the likelihood that the victim has
understated the risk of more violence. The State has advanced no
evidence, and no convincing argument, that Alaska courts have
failed, or must necessarily fail, at this task. Nor did the
legislature make any findings on this issue. The legislative
history reveals no discussion of the residence restriction in AS
12.30.027(b).
Furthermore, because of the broad definition of a
crime involving domestic violence, there is a substantial risk
that the statute will burden the liberty interests of persons who
pose no appreciable risk of future violence. Although domestic
violence is normally understood to mean an assault committed by
one domestic partner against the other, the offense actually
encompasses a much broader range of persons and conduct.32 In
Alaska, a wide variety of crimes extortion, reckless
endangerment, trespass, and criminal mischief, to name a few33
are domestic violence crimes if they are committed by one
household member against another.34 And household member does
not only mean people who are, or have been, involved in a sexual
relationship; it also includes individuals who once lived
together in any context or who dated in the past, or who are
related by marriage or within the fourth degree of
consanguinity.35
Of course, the residence restriction in AS
12.30.027(b) generally will only burden the liberty interest of
a person who was living with the alleged victim at the time of
the offense. But even within this narrower context, it is easy
to imagine situations in which the condition would serve no
legitimate governmental purpose. For instance, if a mother had
an accident while driving with her infant daughter and was
charged with reckless endangerment or assault for that offense,
the court would be obliged to prohibit the mother from returning
to the residence she had shared with her daughter.36 Or, if
Williamss nineteen-year-old daughter, who was living at home and
attending college during this time, had recklessly burned her
parents front porch and been charged with criminally negligent
burning for that offense, the court would be obliged to bar her
from returning home for the duration of her pre-trial release.37
Judge Murphy provided another example of how the
residence restriction might create a significant hardship without
advancing the States interest in reducing domestic violence:
Court: Lets say you have a case where a couple have
been married for a long period of time.
Theres no criminal activity. They get along
pretty well. As married couples often do,
they have little fights and disagreements.
Well, one night they both have been drinking
and the husband calls the wife a fat pig or
some other obnoxious statement, and the wife
slaps him. He then goes ahead and calls the
police. The police arrive.
Now ... I assume the prosecutor
acknowledges that the [Anchorage Police
Department] has a policy in domestic
violence cases that if they go there on a
call, theyre going to arrest somebody,
right?
Prosecutor: Yes, Your Honor.
Court: So lets say they arrest a woman for slapping
her husband. They take her to jail and shes
prohibited from returning to the home that
she lived in for maybe a quarter of a
century, and she has school-aged children to
raise, and she is a home provider, and she
prepares all the meals for the kids ... .
And the husband, who works full-time on the
North Slope, or maybe [like Williams] he
works in the valley in the Department of
Corrections, isnt there to do that. Theres
been a total disruption to the home.
As the above examples illustrate, under Alaskas far-
reaching definition of domestic violence, probable cause to
believe a person has committed a domestic violence offense cannot
necessarily be equated with probable cause to believe that the
person poses an ongoing risk to the alleged victims safety.
Even in Williamss case, which involves the more
typical assault of a husband against a wife, it is possible to
see how AS 12.30.027(b) might infringe an important liberty
interest without advancing any significant governmental interest.
Several weeks after the incident in this case, Williams asked the
court to modify his release conditions to allow him to have
contact with his wife so they could discuss their daughter and
other household matters. Williamss wife supported that request,
and the State did not oppose it. The State told the court that
in looking at Mr. Williamss record and the facts in this case,
the State [is] confident or at least hopeful that it was an
isolated incident. Several months later again with his wifes
support, and with no opposition from the State Williams received
permission to stay in the family home while his wife was
overseas. Shortly before Christmas, some eight months after the
incident, Williams asked for permission to stay at home with the
family for the holidays. Williamss wife told the court that she
and Williams had been in regular contact for months, that they
had traveled together on family vacations, that they wished to
spend the holiday at home as a family, and that it would be a
financial hardship to travel elsewhere. Judge Murphy denied the
request, noting that the statute gave him no choice:
... I realize it works a hardship and, in
some situations, I suspect that not having a
family mend itself may cause more problems
and exacerbate the whole issue that caused
the domestic violence in the first place. I
understand all that. Ive been dealing with
domestic violence in this state for almost a
third of a century now. ... I cant change
the law though ... at this date. So he
cannot go back to the residence.
Ultimately, Judge Murphy found that the release condition barring
Williams from returning to the residence was appropriate in this
case. But given the unrestricted contact Williams and his wife
had outside the home, it is at least arguable that the
prohibition on Williams returning to the residence was no longer
serving its intended purpose.
Moreover, it appears that other jurisdictions have
found less restrictive alternatives adequate to protect the
victims of domestic violence. The Model Code on Domestic and
Family Violence, which served as a blueprint for Alaskas 1996
Domestic Violence Prevention and Victim Protection Act (the law
that authorized the residence restriction at issue in this
case),38 contains no blanket prohibition on a person charged with
domestic violence returning to the residence of the alleged
victim.39 Rather, the Model Code gives courts discretion to
remove the accused from the home if the court finds that doing so
is necessary to protect the alleged victim.40 Apparently no
other state follows Alaskas rule. At least two states restrict a
person charged with domestic violence from returning to the
alleged victims residence for one to three days after the
incident but the victim can waive that requirement.41
In its amicus brief, the Alaska Network on Domestic
Violence and Sexual Assault points out that Alaskas domestic
violence law removes discretion in a number of other ways. For
instance, the police now must arrest an alleged perpetrator if
they have probable cause to believe domestic violence occurred
within the preceding twelve hours.42 The arrestee must be held
in custody until arraignment.43 And although the arrestee has
the right to a telephone call after arrest, he or she cannot call
the victim.44
But these measures are aimed at defusing a
potentially violent situation until a judicial officer can assess
the danger to the alleged victim and, if necessary, impose
appropriate conditions of release. The non-discretionary
residence restriction potentially burdens an accuseds liberty
interest for a much longer period (Williams has apparently been
barred from the family residence since April 2005), with no
possibility for judicial review. As Williams observes, a ban on
returning to the residence while on pre-trial release may be more
burdensome than the sentence the person will receive if he
ultimately is convicted of domestic violence a situation that
might encourage a defendant to give up the right to trial and
enter a plea.
In Dawson, we recognized that restrictions on marital
association might be justified in domestic violence cases.45
But we also recognized that those restrictions should be
carefully considered:
In certain types of cases, such as cases
involving domestic violence, limiting
marital association would plainly be
defensible. In any type of case, it is
conceivable that such a limitation might be
justified by case-specific circumstances
demonstrating actual necessity and the lack
of less restrictive alternatives. In such a
case, however, to avoid unnecessary
intrusion on marital privacy, it would seem
appropriate to tailor a close fit between
the scope of the order restricting marital
association and the specific needs of the
case at hand.[46]
We struck down the probation condition in Dawson
which forbade the defendant from any contact with his wife unless
the contact was approved by his probation officer after
concluding that the court had made no apparent effort to tailor
the scope of the condition to the specific circumstances of
Dawsons case.47 Similarly here, the State has failed to show
that the less restrictive alternatives adopted by the Model Code
and other jurisdictions for instance, conditioning the residence
restriction on a judicial finding, following a hearing, that the
person charged with domestic violence poses an ongoing risk to
the alleged victim would fail to accomplish the governments
interests. The legislation is thus impermissibly overinclusive:
it prohibits all persons charged with crimes that meet the broad
definition of domestic violence from returning to the victims
residence, even persons who pose no appreciable risk of
assaulting the victim or tampering with the victims testimony.48
In urging a contrary conclusion, the Amicus Curiae
points to our decision in Stiegele v. State.49 In Stiegele, we
rejected an equal protection challenge to a statute that denied
bail to all persons convicted of class A and unclassified
felonies.50 We reasoned that the legislature could legitimately
conclude that the average unclassified or class A offender was
more dangerous, and more of a flight risk, than the average class
B or class C offender.51
Stiegele is distinguishable from this case. All the
individuals denied bail under the statute at issue in Stiegele
had been convicted of serious felonies. Individuals who have
been convicted of a crime have no constitutional right to bail52
and a diminished liberty interest.53 The statute was therefore
not subject to heightened scrutiny, and the fact that it may have
reached some individuals who were not a danger or a flight risk,
and missed some who were, did not make it fatally under- or
overinclusive.54
By contrast, individuals charged with, but not yet
convicted of, a crime involving domestic violence retain an
important liberty interest in choosing their family living
arrangements. Moreover, far more disparate individuals are
burdened by this statute: the class includes individuals who have
committed offenses ranging from murder to criminal mischief, and
presumably some individuals who are innocent of any crime. Given
the reach of the statute, and the importance of the right
infringed, even if the State could show (which it has not) that
the average person charged with domestic violence poses an
ongoing danger to the alleged victim, the statute would likely
still burden enough people who are not dangerous to violate our
constitution.
We recognize that we have a duty to construe a statute
to avoid unconstitutionality if we can reasonably do so.55 But
the separation of powers doctrine prohibits us from enacting
legislation or redrafting patently defective statutes.56
On its face, AS 12.30.027(b) eliminates all judicial
discretion to permit a person charged with a crime involving
domestic violence to return to the residence of the alleged
victim. But as we have pointed out, the category of crime
involving domestic violence includes many crimes that have
nothing to do with physical assault committed by one domestic
partner upon another. That is, this category includes many
crimes where the State has no apparent interest in barring the
defendant from returning to the home of the victim. Although we
could speculate that the legislature was unaware of the furthest
reaches of this provision, and that it meant to reach only
certain types of crimes (for instance, threats or assaults), or
certain types of individuals (for instance, domestic partners),
construing the statute to conform with our speculations would be
stepping over the line of interpretation and engaging in
legislation.57
Moreover, even if we were to limit the reach of AS
12.30.027(b) to instances of assault by one domestic partner upon
another, this narrower category would still include situations
where the States interest in preventing the defendant from
returning home would be questionable at best as Judge Murphy
pointed out in his example.
We conclude that there is no obvious way to narrow the
definition of crime involving domestic violence so that it
applies only to cases where (1) the State has a demonstrable
interest in barring the defendant from returning to the alleged
victims home and (2) the States interest clearly outweighs the
substantial personal liberty interest in choosing ones living
arrangements. Accordingly, we cannot use our power of judicial
construction to re-write the statute.
We therefore hold that AS 12.30.027(b), as applied to
individuals on pre-trial release, violates article I, section 1
of the Alaska Constitution. (We express no opinion as to whether
this statute is constitutional as applied to individuals on post-
conviction release.58) Having invalidated subsection (b) as it
applies to Williams, we find it unnecessary to address Williamss
other challenges to the statute.59
The State urges us to avoid ruling on the
constitutionality of AS 12.30.027(b) because Judge Murphy held
that the residence restriction was, in any event, appropriate in
Williamss case. But from our review of the record it is not
apparent that Judge Murphy considered whether the governments
interests could be served by the less restrictive alternatives
authorized by the Alaska Statutes.60
Moreover, we do not view this as a close question and
see no reason to defer a ruling. The issue has been thoroughly
briefed by the parties and by Amicus Curiae. And, as the State
has previously emphasized, bail release of those charged with
domestic violence is a recurring issue that tends to evade review
because defendants have their cases resolved, or violate a
condition of release, before we have a chance to rule on the
issue.61 We think it reasonably likely that, in the absence of
guidance from our court, judges engaged in the daily press of
bail hearings will enforce the residence restriction as it
plainly reads, even if they harbor serious reservations about its
constitutionality or appropriateness in a given case.
Conclusion
For the foregoing reasons, we REVERSE the decision of
the district court and REMAND the case for a hearing and new
findings consistent with this opinion.
_______________________________
1 AS 11.41.230(a)(1).
2 AS 18.66.100(c) lists the conditions that may be imposed
in a domestic violence protective order.
3 In State v. Roberts, 999 P.2d 151 (Alaska App. 2000), we
rejected the claim 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. Id. at 154-
55.
4 U.S. Const. amend. XIV, 1; Alaska Const. art. I, 1.
5 See generally Laurence H. Tribe, American Constitutional
Law 16-4, at 1450 (2d ed. 1988).
6 Alaska Pacific Assur. Co. v. Brown, 687 P.2d 264, 269-70
(Alaska 1984); see also State v. Erickson, 574 P.2d 1, 12 (Alaska
1978).
7 894 P.2d 672 (Alaska App. 1995).
8 Id. at 680 (citing Thomas v. State, 710 P.2d 1017, 1019
(Alaska App. 1985)).
9 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977).
10 Id. at 495-96, 97 S. Ct. at 1934.
11 Id. at 496-97, 97 S. Ct. at 1934.
12 Id. at 497, 97 S. Ct. at 1934.
13 Id. at 499, 97 S. Ct. at 1935-36 (quoting Cleveland
Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S. Ct.
791, 796, 39 L. Ed. 2d 52 (1974)).
14 Cf. Martin v. State, 517 P.2d 1389, 1396-97 (Alaska
1974) (recognizing that the legislature may not infringe on an
accuseds constitutional right of bail); Dawson v. State, 894 P.2d
672, 680 (Alaska App. 1995) (recognizing that probationers retain
a constitutional right to a marital association).
15 See also Treacy v. Anchorage, 91 P.3d 252, 264-66
(Alaska 2004) (ruling that juvenile curfew ordinance implicated
fundamental rights to move about and to privacy).
16 See Erickson, 574 P.2d at 12.
17 See United States v. Salerno, 481 U.S. 739, 749, 107 S.
Ct. 2095, 2103, 95 L. Ed. 2d 697 (1987) (The governments interest
in preventing crime by arrestees is both legitimate and
compelling.).
18 Cf. In the Matter of K.L.J., 813 P.2d 276, 280 (Alaska
1991) (quoting In re Jay [R.], 150 Cal. App. 3d 251, 197 Cal.
Rptr. 672, 681 (1983)) (The state has no legitimate interest in
terminating a parents relationship with his child if he has not
willfully neglected or abandoned that child.).
19 See Matanuska-Susitna Borough Sch. Dist. v. State, 931
P.2d 391, 396-97 (Alaska 1997); Alaska Pacific Assur. Co., 687
P.2d at 269-70.
20 See Covington v. State, 747 P.2d 550, 553 n.5 (Alaska
App. 1987); Wood v. State, 712 P.2d 420, 428 n.7 (Alaska App.
1986).
21 Jurek v. Texas, 428 U.S. 262, 275-76, 96 S. Ct. 2950,
2958, 49 L. Ed. 2d 929 (1976).
22 State v. Wassillie, 606 P.2d 1279, 1289 (Alaska 1980)
(Rabinowitz, J., dissenting) (quoting United States v. Stanley,
469 F.2d 576, 581 (D.C. Cir. 1972) (footnotes omitted)).
23 AS 12.30.027(a); AS 18.66.100(c)(3).
24 AS 12.30.020(b)(1).
25 AS 12.30.020(b)(2).
26 AS 12.30.020(b)(3).
27 AS 12.30.027(a); AS 18.66.100(c)(1).
28 AS 12.30.027(a); AS 18.66.100(c)(2).
29 AS 12.30.027(a); AS 18.66.100(c)(4), (5).
30 AS 12.30.027(a); AS 18.66.100(c)(7).
31 AS 12.30.020(b)(7); AS 12.30.027(a).
32 Bingaman v. State, 76 P.3d 398, 407-08 (Alaska App.
2003); Carpentino v. State, 42 P.3d 1137, 1141 (Alaska App. 2002)
(opinion on rehearing).
33 AS 11.41.520; AS 18.66.990(3).
34 AS 18.66.990(3).
35 AS 18.66.990(5)(B)-(F).
36 See AS 11.41.250 (reckless endangerment); AS
18.66.990(3)(A) (defining domestic violence to include a crime
against the person under AS 11.41); AS 18.66.990(5)(E) (defining
household member to include adults or minors who are related to
each other up to the fourth degree of consanguinity).
37 See AS 11.46.430 (criminally negligent burning); AS
18.66.990(3)(D) (defining domestic violence to include criminally
negligent burning); AS 18.66.990(5)(E) (defining household member
to include adults or minors who are related to each other up to
the fourth degree of consanguinity).
38 See Sponsor Statement and Summary of H.B. 314,
introduced by Rep. Sean R. Parnell (House Judiciary Committee
file).
39 Model Code on Domestic and Family Violence, published
by the National Council of Juvenile and Family Court Judges
(1994).
40 Id. 208(2)(c).
41 See Utah Code Ann. 77-36-2.5 (providing that a person
arrested for domestic violence may not be released on bail prior
to the close of the next court day following the arrest unless he
is ordered not to contact the victim or enter the victims
residence until the expiration of that time, but permitting the
victim to waive that requirement); Wis. Stat. 968.075(5)(a)(1)
(requiring a person arrested for domestic violence to avoid the
residence of the alleged victim during the 72 hours after arrest,
but permitting the victim to waive that requirement).
42 AS 12.25.030(b); AS 18.65.530.
43 AS 12.30.027(e).
44 AS 11.56.755; AS 12.25.150(b).
45 Dawson, 894 P.2d at 680.
46 Id. at 680-81.
47 Id. at 681.
48 Cf. Patrick v. Lynden Transport, Inc., 765 P.2d 1375,
1379 (Alaska 1988).
49 685 P.2d 1255 (Alaska App. 1984).
50 Id. at 1257-58.
51 Id.
52 Hosier v. State, 976 P.2d 869, 871 (Alaska App. 1999);
Wassillie, 606 P.2d at 1283.
53 Monroe v. State, 847 P.2d 84, 89-90 (Alaska App. 1993);
see also McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S. Ct.
2411, 2415, 91 L. Ed. 2d 67 (1986) (noting that convicted felons
liberty interest is substantially diminished by a guilty
verdict).
54 Stiegele, 685 P.2d at 1258.
55 Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979);
Larson v. State, 564 P.2d 365, 372 (Alaska 1977); Hoffman v.
State, 404 P.2d 644, 646 (Alaska 1965).
56 Bonjour, 592 P.2d at 1238 (citing State v. Campbell,
536 P.2d 105, 110-11 (Alaska 1975), overruled on other grounds by
Kimoktoak v. State, 584 P.2d 25 (Alaska 1978)); Gottschalk v.
State, 575 P.2d 289, 296 (Alaska 1978)).
57 Gottschalk, 575 P.2d at 296; see also Myers v.
Anchorage, 132 P.3d 1176, 1186 (Alaska App. 2006) (invalidating a
municipal drug paraphernalia ordinance because any re-write would
be so drastic that we believe it falls outside a courts proper
sphere of action).
58 See AS 01.10.030 (providing for severability of
unconstitutional provisions).
59 We also decline to address Williamss claim that the
court erred in relying on hearsay evidence in imposing the
residence restriction, finding that claim moot. See State v.
Roberts, 999 P.2d at 153 (Generally courts will not resolve an
issue when it is moot.).
60 See Dawson, 894 P.2d at 680-81.
61 See Roberts, 999 P.2d at 153.
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