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Stadler v. State of Alaska (6/14/91), 813 P 2d 270
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRIS STADLER, )
) Supreme Court No. S-3554
Appellant,)
v. ) Superior Court No.
) 3AN-89-6448 Civil
STATE OF ALASKA, )
) O P I N I O N
Appellee. )
_________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Karen L. Hunt, Judge.
Appearances: John C. McCarron, Ashburn
and Mason, Anchorage, for Appellant. David
Mannheimer and Cynthia Hora, Assistant
Attorneys General, Office of Special
Prosecution and Appeals, Anchorage, Douglas
B. Baily, Attorney General, Juneau, for
Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
INTRODUCTION
Christopher Stadler, a jury panelist, was held in
contempt for leaving the courthouse during a recess and failing
to return. He was sentenced to serve ninety hours of jury
service. We reverse.
FACTS AND PROCEEDINGS
On August 1, 1989, nineteen-year-old Christopher
Stadler was on the jury panel in a civil trial. Before the panel
was sworn in, the superior court announced a short recess. The
court told the jurors they should remain in the lobby adjacent to
the courtroom. During the recess, Stadler left the courthouse
and did not return. Two days later, Stadler was arrested.
At his arraignment, Stadler appeared without counsel.
After the superior court ascertained that Stadler had left the
courthouse premises, it asked for an explanation. Stadler
explained, "I -- I just -- I needed a job real bad and I didn't
think that I could stay here for a long continued trial because I
. . . I didn't think it was really that serious that if I left
that I'd be in that much trouble." When the court indicated that
it might impose ninety hours of jury service on Stadler, the
estimated time of service for the jury on which he was originally
impanelled, it asked Stadler if he had a response. He said,
"No." Although the superior court initially ordered Stadler to
serve the ninety hours of jury service, its written order stated
that Stadler must report for jury duty the first Monday of each
month and shall "continue to report for jury duty until he has
been either waiting to be selected or has been selected and
served a total of 90 hours of jury service."1 Stadler appeals.
DISCUSSION2
Stadler and the state disagree about the nature of his
contempt. Stadler claims that the superior court should have
found him in criminal contempt; the state argues that the
superior court correctly held him in civil contempt. In general,
under criminal contempt, the contemnor is afforded greater
procedural protection and the court's discretion is more
circumscribed than under civil contempt.
We hold that Stadler committed criminal contempt and
that the superior court erred by invoking its inherent power to
punish Stadler for contempt without giving adequate notice that
it was doing so. Although we hold that Stadler's contempt was
indirect, we reject his claim that he is entitled to a jury
trial. Because Stadler will receive notice and a hearing on
remand, we need not reach Stadler's further allegations of
procedural error.
The Nature of the Contempt
The distinction between civil and criminal contempt is
well-established in the case law.3 We reviewed the history of
the criminal/civil contempt distinction in Johansen v. State, 491
P.2d 759, 763-64 (Alaska 1971). There we adopted the test set
out in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441
(1911):
It is not the fact of punishment, but
rather its character and purpose, that often
serve to distinguish between the two classes
of cases. If it is for civil contempt the
punishment is remedial, and for the benefit
of the complainant. But if it is for
criminal contempt the sentence is punitive,
to vindicate the authority of the court.
Johansen, 491 P.2d at 763. See also L.A.M. v. State, 547 P.2d
827, 831 (Alaska 1976) ("The distinction between criminal and
civil contempt is generally phrased in terms of whether the
character and purpose of the contempt is 'remedial' or
'punitive.'") Yet, we also acknowledged that "[t]his remedial-
punitive distinction is not perfectly sharp." Johansen, 491 P.2d
at 764.
The superior court treated Stadler's contempt as
criminal contempt. Imposing ninety hours of jury service was
punitive; it responded to Stadler's past actions and was not
conditioned on any future action on his part.4
Other factors also indicate the criminal nature of
Stadler's contempt. There was no third party. In Johansen, we
implicitly recognized that a civil contempt proceeding usually
seeks to coerce compliance with a court order for the benefit of
a third party. Johansen, 491 P.2d at 764 n.22 & 765. Moreover,
a civil contempt defendant usually carries the keys to his or her
imprisonment (or punishment) in his or her own pocket. Johansen,
491 P.2d at 765. See Diggs v. Diggs, 663 P.2d 950, 951 (Alaska
1983) (civil contempt proceeding in non-payment of support cases
must afford "a continuous opportunity to the defendant to purge
the contempt"); E.L.L. v. State, 572 P.2d 786, 789 (Alaska 1977).
Here, no purge clause existed; Stadler could not terminate his
punishment.
The state contends that the contempt was civil,
equating the ninety hours of jury service to restitution. We
reject this argument. The cases cited by the state do allow
courts to order restitutionary payments by the contemnor to a
third party in civil contempt cases. "The purpose of civil
contempt is 'to enforce compliance with an order of the court or
to compensate for losses or damages sustained by reason of
noncompliance.'" Yannish v. Barber, 232 F.2d 939, 945 (9th Cir.
1956) (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187,
191 (1949)), overruled on other grounds, Donovan v. Burlington
Northern, Inc., 781 F.2d 680, 682 (9th Cir. 1986). See also
Portland Feminist Women's Health Center v. Advocates for Life,
Inc., 877 F.2d 787, 790 (9th Cir. 1989). In each of these cases,
however, the costs imposed were discrete and identifiable and
related directly to the contemnor's disobedience of a court
order. Moreover, the contemnor could have purged the contempt at
any time, thereby reducing the amount of restitution he or she
would eventually have to pay.
Here, importantly, Stadler's obligation to the state
for jury service had never been excused or deferred, pursuant to
AS 09.20.030 (exemption from jury service) or AS 09.20.035
(deferral of jury service). The superior court could not have
been compensating the community for a still existing obligation.
Nor did the superior court indicate that it was seeking to
compensate the state for its loss. Rather, it imposed a "form of
community service"for a "direct violation of a court order."
In sum, Stadler's contempt was clearly criminal in
nature, not civil.
The Process That Was Due
Stadler, citing Continental Insurance Co. v. Bayless &
Roberts, Inc., 548 P.2d 398, 405 (Alaska 1976), contends that he
is entitled to "all procedural safeguards which are consistent
with the interest of the court in upholding its efficiency,
dignity and authority." The state argues that Stadler was not
entitled to procedural safeguards because his contempt was a
"direct contempt,"i.e. one that occurs in the presence of the
court. See Taylor v. District Court, 434 P.2d 679, 681 (Alaska
1967). We conclude that Stadler's act here constituted indirect
contempt.
In Taylor, both an attorney and his client failed to
appear in the district court at the time set for trial. The
district court issued an order to show cause. The attorney
appeared and gave his explanation, which the court found
insufficient, and fined him $100. The attorney appealed, arguing
that for an indirect or constructive contempt, Civil Rule 90(b)
required that the contempt proceeding commence by means of an
affidavit, which had not been done. Therefore, he argued, the
district court did not have jurisdiction to render its judgment.
In Taylor, we held,
The failure of an attorney to appear in
court when he is supposed to appear may, in
one sense, be classified as a direct contempt
in that the attorney's offensive conduct --
his absence -- occurs in the presence of the
court. That is what appellee argues. But a
mere failure to appear does not, in and of
itself, amount to a contempt of court. In
order for there to be contempt it must appear
that there has been a willful disregard or
disobedience of the authority or orders of
the court. Whether such willfulness exists
is something the court cannot be aware of
from its own observations in the courtroom
and without inquiry from other sources.
Without such inquiry the court cannot
ascertain the operational facts from which an
inference of willful disobedience or
disregard of the court's authority or orders
can be drawn. An explanation for the
attorney's absence is not apparent and the
facts, which are not evident merely from the
attorney's absence, may be such as to excuse
the apparent contempt. We hold, therefore,
in line with the majority view in this
country, that appellant's failure to appear
in court at the time specified by order of
the court, may amount to an indirect, but not
a direct contempt of court.
Id. at 681 (footnotes omitted).5
Under Taylor, Stadler's contempt was an indirect
contempt. The superior court could not ascertain the willfulness
of Stadler's violation from its own observation. This was made
explicit when the court asked Stadler, "[a]nd at a recess in
which there was a direct order of the Court for you to remain in
the lobby, you left the premises; did you not?" and further
asked, "[d]o you have any explanation for your conduct?" As this
colloquy illustrates, Stadler's action could have lacked the
requisite willfulness required for direct contempt.
Stadler concludes that he was entitled to a variety of
specific procedural safeguards. Specifically, Stadler argues
that he was entitled to a jury trial. The potential punishment,
not the sentence or fine actually imposed, determines whether
Stadler was entitled to a trial by jury. Wood v. Superior Court,
690 P.2d 1225, 1233 (Alaska 1984), overruled on other grounds,
DeLisio v. Superior Court, 740 P.2d 437, 439 (Alaska 1987). We
hold, however, that Stadler was not threatened with incarceration
and consequently was not entitled to a jury trial. The statutory
provision which covers Stadler's contempt indicates that he was
not subject to imprisonment. Alaska Statute 09.50.020 states,
Penalty. A person who is guilty of
contempt is punishable by fine of not more
than $300 or by imprisonment for not more
than six months. However, when the contempt
is one mentioned in AS 09.50.010(3)-(12), or
in an action before a magistrate, the person
is punishable by a fine of not more than $100
unless it appears that a right or remedy of a
party to an action or proceeding was defeated
or prejudiced by the contempt, in which case
the penalty shall be as prescribed for
contempts described in AS 09.50.010(1) and
(2).
Stadler's acts fell directly under AS 09.50.010(11):
Acts or omissions constituting contempt.
The following acts or omissions in respect to
a court of justice or court proceedings are
contempts of the authority of the court:
. . . .
(11) when summoned as a juror in a
court, neglecting to attend or serve . . . .6
Under the statute, Stadler was not entitled to a jury
trial. "Ordinarily the contemnor is entitled to a jury trial
only when incarceration is a possible sanction for his
misbehavior." Weaver v. Superior Court, 572 P.2d 425, 431
(Alaska 1977). The United States Supreme Court has recognized
that "certain specific constitutional protections, such as the
right to trial by jury, are not applicable to those criminal
contempts that can be classified as petty offenses, as is true of
other petty crimes as well." Hicks v. Feiock, 485 U.S. 624, 633
n.5 (1988).7
Finally, Stadler objects that he was not informed of
the potential punishment he faced and that he did not receive an
adequate hearing. Stadler further argues that the court erred by
failing to advise him that he had a right to counsel. Because we
remand for further proceedings, these issues are moot.8
The Punishment
Stadler argues that his contempt specifically fell
within AS 09.50.010(11). Therefore, he contends that his
punishment is statutorily limited to $100 under AS 09.50.020.
The state, citing Continental Insurance Co., 548 P.2d at 410-11,
argues that AS 09.50.020 does not "delimit the full extent of the
superior court's power to punish contemnors[.]" Both arguments
have merit. However, given the facts in the case at bar, we
conclude that the superior court erred in invoking its inherent
powers to punish contemnors, because it did not give notice that
it was doing so or inform Stadler that he was subject to a
penalty greater than the statutory limit.
We find persuasive the court of appeals' decision in
Lastufka v. State, 662 P.2d 991 (Alaska App. 1983). The
defendant in Lastufka, after being sworn in as a juror, did not
appear for jury duty because he had to go out of town due to his
job. He was ordered to show cause why he should not be held in
contempt. He admitted his failure to appear was willful and was
sentenced to serve 120 hours in jail. The court of appeals
reversed the sentence and held that the statutory crime with
which he was charged carries a maximum sentence of $100. The
court of appeals assumed, without deciding, that the court has
inherent powers to punish contempt. However, it held that
Lastufka was "never given any notice that the court was invoking
its inherent powers or that he was subject to any penalty other
than a hundred dollar fine."Id. at 993. Given that Lastufka was
not given notice of the specific charge against him, and given
that his action fell squarely within the statute, he was entitled
to believe that he was subject only to the statutory fine of
$100.9
The state contends that the statutory penalty is
"clearly inadequate to accomplish the tasks of ensuring the
efficient operation of the superior court and upholding the
authority of that court." We note that the fine was set by the
legislature, and it clearly has the prerogative to set the fine
at this level. Moreover, the statute does not limit the court's
inherent power to punish contempt when notice is given.
Continental Insurance Co., 548 P.2d at 410-11.10
Additionally, Stadler's obligation for jury service has
never terminated. He has never been exempted pursuant to AS
09.20.030; he is still legally obligated to serve. The court
could have imposed the $100 fine for contempt, and then informed
Stadler that his legal obligation to serve still existed.
Instead, the superior court used a specific amount of jury
service as a punishment for the contempt. This sentence exceeded
the court's statutory authority, given that insufficient notice
existed to invoke its inherent authority.11
CONCLUSION
We vacate the punishment imposed and remand to the
superior court for further proceedings consistent with this
opinion.12 The sentence imposed is VACATED and the case is
REMANDED for further proceedings consistent with this opinion.
_______________________________
1. The superior court's written order modified its oral
order, which had originally required Stadler to return for jury
service until he served ninety hours of jury service. In its
oral order, the court warned that "this may take up to a year
because there aren't a lot of jury trials . . . ."
2. All questions involved in this appeal are legal
questions which this court can decide de novo. On questions of
law, we must "adopt the rule of law that is most persuasive in
light of precedent, reason, and policy." Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
3. Alaska Statute 09.50.010, which designates acts or
omissions which constitute contempt, does not make explicit
whether violation of its provisions are criminal or civil
contempt. This court has noted,
[E]ven the location of the contempt laws
in the state statutes permits ambiguous
inferences. The contempt provisions are
found in AS 09.50.010-09.50.060, part of the
Code of Civil Procedure, but these sections
are specifically made applicable to "criminal
actions"by AS 12.80.010, part of the Code of
Criminal Procedure.
Johansen v. State, 491 P.2d 759, 762 n.1 (Alaska 1971).
4. See Weaver v. Superior Court, 572 P.2d 425, 428 (Alaska
1977) ("[T]he contempt sanction imposed on appellant was clearly
criminal in nature, since the $100 fine was imposed for past
actions, was not conditioned on any further action by appellant
and could not be avoided by any subsequent action on Weaver's
part."); DeLisio v. Superior Court, 740 P.2d 437, 439 (Alaska
1987); Pharr v. Fairbanks North Star Borough, 638 P.2d 666, 669
(Alaska 1981); Gwynn v. Gwynn, 530 P.2d 1311, 1312-13 (Alaska
1975).
5. The state concedes in its brief that the contempt in
Lastufka v. State, 662 P.2d 991, 993 (Alaska App. 1983), was
indirect. There, similar to the case at bar, a juror selected
for criminal trial did not return to court on the second day of
trial because he secured an out-of-town job.
6. The state agrees that Stadler's conduct "did not
prejudice or defeat any right or remedy of the parties . . . .
Thus, the maximum penalty under AS 9.50.020 was a $100 fine."
7. Alaska Statute 09.50.030, while addressing the right to
a jury trial in an indirect contempt proceeding, does not aid
Stadler:
Jury Trial. A person who is charged
with contempt of court not committed in the
presence of the court, where the act or thing
so charged as a contempt is of such nature as
to constitute also a criminal offense under a
statute of the United States or a law of this
state, has a right to a jury trial.
Stadler's action was not a criminal offense under a law of this
state or under a federal statute.
8. We note, however, that for a case of criminal contempt
where the punishment is limited to the statutory $100 fine,
adequate notice is provided when the order to show cause
specifies the alleged contemptuous act. Taylor, 548 P.2d at 679.
9. The state tries unsuccessfully to limit Lastufka's
application. The state says Lastufka was proceeded against
criminally and not via civil contempt. Stadler, however, also
was proceeded against criminally. The state also notes that
Lastufka committed indirect contempt. Yet, Stadler did also.
Finally, the state argues that the court of appeals awarded the
wrong remedy. Whatever the merits of this argument for Lastufka,
no plea bargaining existed in Stadler's case. We can order a
unilateral reduction of the sentence on appeal. See Appellate
Rule 215(a)(2); Criminal Rule 35(a).
10. In addition, we note that the statutory penalty can be
applied repeatedly, every time a juror fails to fulfill his or
her jury duty obligation. The court had the discretion to fine
Stadler $100 and require him to appear for jury duty the next
day. If he again failed to appear, the fine could be reimposed,
and again he could be ordered to appear. The culmination of the
contempt fines would soon cease to be de minimis, if in fact it
was ever de minimis here.
11. We also note disapproval with the sentence in the case
at bar. A jury trial is an important constitutional right for a
party in a civil action, State v. Kaatz, 572 P.2d 775, 779
(Alaska 1977), or a defendant in a criminal action, Wood v.
Superior Court, 690 P.2d 1225, 1233 n.12 (Alaska 1984), overruled
on other grounds, DeLisio, 740 P.2d at 439. To require jury
service as a punishment not only threatens the right for a party
entitled thereto, but it also cheapens a civic duty of the
highest magnitude.
12. After further proceedings the court may either impose a
sentence not to exceed $100 or give proper notice that it intends
to invoke its inherent powers. However, the superior court may
not impose a more severe sentence than originally imposed.
Shagloak v. State, 597 P.2d 142, 145 (Alaska 1979). Given our
disapproval of the ninety hours of jury service as a sentence in
this case, and given that the court called this punishment
"community service,"the court on remand may not impose a more
severe sentence than ninety hours of "community service."
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