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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Fyfe (3/25/2016) sp-7094
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-15687
Petitioner,
) Court of Appeals No. A-11058
)
v. ) Superior Court No. 3PA-10-03464 CR
)
LINDEN K. FYFE,
) O P I N I O N
)
Respondent.
) No. 7094 - March 25, 2016
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, David L. Zwink,
Judge.
Appearances: Mary A. Gilson, Assistant Attorney General,
Anchorage, and Craig W. Richards, Attorney General,
Juneau, for Petitioner. Kelly Taylor, Assistant Public
Defender, and Quinlan Steiner, Public Defender, Anchorage,
for Respondent.
Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger,
Justices. [Winfree, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
Linden Fyfe was stopped by police while driving on a stretch of highway
designated as a traffic safety corridor. He was charged and convicted of driving under
----------------------- Page 2-----------------------
the influence of alcohol, a violation of AS 28.35.030. At sentencing the trial court
imposed double the statutory minimumfine, relying on another statute, AS 28.90.030(a),
that doubles "the fine, or maximum fine," for any violation of a provision of Title 28 in
a traffic safety corridor. The court of appeals reversed. It concluded that despite the
statute's plain language, the legislature intended fines to be doubled only for non-
criminal traffic offenses.
We disagree with the court of appeals' rationale, though not its mandate.
We conclude that the contrary legislative history is not convincing enough to overcome
the plain language of AS 28.90.030(a), and the statute therefore applies to both criminal
and non-criminal traffic offenses under Title 28. But we also hold that the plain language
of the statute precludes its application to minimum fines such as the one at issue here.
On that ground we affirmthe court of appeals' decision to vacate Fyfe's fine and remand
for imposition of the statutory minimum fine.
II. FACTS AND PROCEEDINGS
A state trooper stopped Linden Fyfe on the Parks Highway after observing
that Fyfe's vehicle was missing a muffler and the license plate was obscured. The
trooper later testified that Fyfe was shaking, slurred his words, and smelled of alcohol.
After a Datamaster breathalyzer test showed that Fyfe's blood alcohol level was 0.117%,
1
he was charged with felony driving under the influence (DUI).
At trial he raised the
defense of necessity, testifying that he had to drive because his girlfriend's daughter,
whom he had helped raise from infancy, had been admitted to the hospital after an
apparent seizure. The jury rejected the defense and convicted him.
1 A blood alcohol level of 0.08% or above is one element of the crime of
driving under the influence. AS 28.35.030(a)(2).
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----------------------- Page 3-----------------------
At sentencing the State relied on AS 28.90.030(a), which doubles "the fine,
or maximum fine" for any violation of "a provision of this title" that occurs "within a
highway work zone or traffic safety corridor." It was the State's position that the
mandatory minimum fine for driving under the influence had to be doubled - from
$10,000 to $20,000 - based on the uncontested fact that Fyfe's offense occurred on a
stretch of highway designated as a traffic safety corridor. The superior court sentenced
Fyfe to 20 months in prison with 16 months suspended and imposed a $20,000 fine; it
remarked, however, that it would have imposed a fine of half that amount if not for the
statutory mandate.
Fyfe appealed his conviction to the court of appeals. He argued in part that
the $20,000 fine was illegal because the legislature did not intend to double the fine for
2
felony driving under the influence in a traffic safety corridor.
The court of appeals
3
agreed and vacated the fine. It noted that although the plain language of
AS 28.90.030(a) would seem to double fines for all offenses found in Title 28, Alaska's
4
canons ofstatutory construction requirethatcourtsalsoconsider legislativehistory. The
court of appeals concluded that this history reveals a legislative intent to limit the fine-
doubling provision to non-criminal trafficoffenses, thus excluding criminaloffenses like
5
Fyfe's felony DUI.
The State filed a petition for hearing, asking us to review the court of
appeals' interpretation of AS 28.90.030(a). We granted review.
2 Fyfe v. State, 334 P.3d 183, 184 (Alaska App. 2014).
3 Id. at 185-90.
4 Id. at 185.
5 Id. at 185-87.
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----------------------- Page 4-----------------------
III. STANDARD OF REVIEW
"The interpretation of a statute . . . is a question of law to which we apply
6
our independent judgment."
"We do not mechanically apply the plain meaning rule,
using instead a sliding scale approach to statutory interpretation, in which 'the plainer
the statutory language is, the more convincing the evidence of contrary legislative
7
purpose or intent must be.' " "[W]e interpret the statute according to reason,
practicality, and common sense, considering the meaning of the statute's language, its
8
legislative history, and its purpose." No one factor in this analysis is dispositive, but
"[w]here a statute's meaning appears clear and unambiguous, . . . the party asserting a
different meaning bears a correspondingly heavy burden of demonstrating contrary
9
legislative intent." If the party does not satisfy this burden, then "legislative history
10
[that] is somewhat contrary . . . does not overcome the plain meaning."
6 Alaska Judicial Council v. Kruse , 331 P.3d 375, 379 (Alaska 2014)
(alteration in original) (quoting West v. State, Bd. of Game , 248 P.3d 689, 694 (Alaska
2010)).
7 Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)
(quoting McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska
2013)).
8 State, Div. of Workers' Comp. v. Titan Enters., LLC, 338 P.3d 316, 320
(Alaska 2014).
9 Univ. of Alaska v. Geistauts, 666 P.2d 424, 428 n.5 (Alaska 1983); see also
State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982) ("[T]he plainer the language, the
more convincing contrary legislative history must be." (quoting United States v. U.S.
Steel Corp., 482 F.2d 439, 444 (7th Cir. 1973))).
10 Oels v. Anchorage Police Dep't Emps. Ass'n, 279 P.3d 589, 597 (Alaska
2012).
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----------------------- Page 5-----------------------
IV. DISCUSSION
A. The Plain Language Of AS 28.90.030(a) Is Not Overcome By Its
Legislative History.
The trial court applied AS 28.90.030(a) to double the minimum sentence
for Fyfe's offense. The statute provides:
Whenever a person violates a provision of this title or a
regulation adopted under the authority of this title within a
highway workzoneortrafficsafety corridor, notwithstanding
the amount of the fine or the maximum fine set under this
title, the fine, or maximum fine, is double the amount
provided in this title.
"[T]his title" - Title 28 - includes non-criminal traffic infractions;11 it also includes
provisions that impose criminal liability, both misdemeanors and felonies, such as the
DUI statute under which Fyfe was convicted.12 As applied to all these offenses, the
language of AS 28.90.030(a) is clear on its face: it applies "[w]henever a person violates
a provision of this title" - regardless of whether the violation is an infraction, a
misdemeanor, or a felony.
The court of appeals agreed with this plain-language interpretation.13
But
it went on to conclude that the legislature did not intend the fine-doubling provision of
11 See, e.g. , AS 28.35.140 (classifying unlawful obstruction of traffic as an
infraction).
12 See, e.g., AS 28.90.010(a) (imposing misdemeanor liability for any
violation that is not declared a felony or infraction); AS 28.35.030(n) (imposing felony
liability for a third driving under the influence conviction within ten years).
13 Fyfe v. State, 334 P.3d 183, 185 (Alaska App. 2014) ("This provision, on
its face, would seem to mandate a double fine for any driving under the influence offense
committed in a traffic safety corridor because the offense of driving under the influence
is a provision of Title 28.").
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----------------------- Page 6-----------------------
AS 28.90.030(a) to extend to felony driving under the influence because the statute's
14
legislative history overcomes its plain language.
We disagree. Although there is some
legislative history on each side of the issue, we conclude that the history contrary to the
statute's plain language is not convincing enough to overcome it.
1. The 1998 legislative history does not require limiting
AS 28.90.030(a) to non-criminal traffic offenses.
The court of appeals' analysis rests on the conclusion that the legislature
15
intended AS 28.90.030 to apply only to non-criminal traffic offenses.
As the court of
appeals noted, AS 28.90.030 has its origins in former AS 28.40.070, a 1999 statute
16
imposing double fines for "offenses committed within highway work zones." The
legislation creating the statute, first introduced in 1997 as House Bill 87, provided in
relevant part:
Whenever a person violates a provision of this title relating
to speeding, or a regulation adopted under the authority of
this title relating to speeding, or is convicted of reckless
driving under AS 28.35.040 or negligent driving under
AS 28.35.045 within a highway work zone, notwithstanding
the amount of the fine or the maximum fine set under this
title, the fine, or maximum fine, is double the amount
14 Id. at 189.
15 Id. at 187.
16 Former AS 28.40.070 (1999). That statute provided:
Whenever a person violates a provision of this title or a
regulation adopted under the authority of this title within a
highway work zone, notwithstanding the amount of the fine
or the maximum fine set under this title, the fine, or
maximum fine, is double the amount provided in this title.
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----------------------- Page 7-----------------------
provided in this title. [17]
This original bill was thus limited in scope, doubling fines for only three Title 28
violations in highway work zones: speeding, reckless driving, and negligent driving.
18
But House Bill 87 did not become law. Senate Bill 304 was enacted
instead as former AS 28.40.070, containing much the same language as the current law,
19
AS 28.90.030(a). Senate Bill 304 required double fines more broadly than House Bill
87 had - i.e., "[w]henever a person violates a provision of [Title 28] or a regulation
20
under the authority of [Title 28] within a highway work zone."
This expansion of
scope ostensibly applied the double fine requirement to all traffic violations addressed
by Title 28, regardless of whether they were criminal or non-criminal offenses.
The court of appeals noted, however, that some legislative history militates
against this plain-language reading. The only testimony the Senate Transportation
Committee heard about then-existing fines during hearings on Senate Bill 304 involved
21
the maximum fine for a traffic infraction, which was $300; the court of appeals inferred
from this that the legislature anticipated that fines doubled under the law "would
17 House Bill (H.B.) 87, 20th Leg., 1st Sess. (1997) (emphases added).
18 See 1998 House Journal 2603.
19 Committee Substitute for Senate Bill (C.S.S.B.) 304, 20th Leg., 2d Sess.
(1998); 1998 Senate Journal 4273.
20 C.S.S.B. 304 (RLS).
21 Minutes, Sen. Transp. Comm. Hearing on Senate Bill (S.B.) 304, 20th Leg.,
2d Sess. Tape 98-4 Side B (Feb. 24, 1998) (testimony of Capt. Ted Bachman, Alaska
State Troopers).
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----------------------- Page 8-----------------------
22
generally not exceed $600." But this limitation is not reflected in the statutory
language. The court of appeals also quoted Senator Dave Donley, the bill's sponsor,
advising the Senate Transportation Committee "that the legislation 'does not deal with
23
criminal law, only traffic violations.' "
This correctly characterizes the senator's
24
statement as it appears in the hearing minutes, but the audio recording reveals
25
something different. Senator Donley was not describing the bill's fine-doubling
provision, but rather a separate section of the bill that proposed adding a new section to
AS 28.35 that would make it a traffic infraction to drive in the left lane of a divided
highway; his remarks made no distinction between criminal and non-criminal offenses
26
in the context of the fine-doubling provision.
The court of appeals also considered the 1998 legislature's concurrent
amendment to AS 28.05.151 - another part of Senate Bill 304 - directing the supreme
court and municipalities with bail and fine schedules to provide new schedules for
22 Fyfe v. State , 334 P.3d 183, 186 (Alaska App. 2014).
23 Id. (quoting Minutes, Sen. Transp. Comm. Hearing on S.B. 304, 20th Leg.,
2d Sess. (Feb. 24, 1998) (statement of Senator Dave Donley)).
24 Minutes, Sen. Transp. Comm. Hearing on S.B. 304, 20th Leg., 2d Sess.
(Feb. 24, 1998) (statement of Senator Dave Donley) ("[Donley] noted S.B. 304 does not
deal with criminal law, only with traffic violations.").
25 Statement of Senator Dave Donley at 00:03:08-00:05:06, Hearing on
S.B. 304 Before the Sen. Transp. Comm., 20th Leg., 2d Sess. (Feb. 24, 1998).
26 Statement of Senator Dave Donley at 00:04:55-00:05:06, Hearing on
S.B. 304 Before the Sen. Transp. Comm., 20th Leg., 2d Sess. (Feb. 24, 1998) ("[W]ith
those exceptions, you should try to stay to the right and out of that far lane. But it's only
- if you do it, it's just a ticket, it's just an infraction. We're not dealing with criminal
law here, Mr. Chairman, we're just dealing with traffic violations."); see S.B. 304 § 3,
20th Leg., 2nd Sess. (1998) (as introduced on Feb. 16, 1998).
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----------------------- Page 9-----------------------
violations in highway work zones that would "double the amount of the bail or fine for
27
the offense if it had not been committed in a highway work zone."
The court of appeals
read this amendment and AS 28.90.030 together to conclude that "it seems likely that the
legislature understood the double-fine requirement to apply . . . only to offenses
amenable to disposition without court appearance[,] and not to fines imposed as part of
28
a sentence for a criminal offense."
We do not read the amendment to AS 28.05.151 in the same way. While
it does show the legislature's intent to double the fines for non-criminal traffic offenses,
there is no evidence it was intended to define the entire reach of AS 28.90.030(a). It
directs municipalities and the supreme court to double fines that are set by those bodies
rather than by the legislature. A corresponding directive for criminal offenses was
unnecessary because sentences in such cases are codified by the legislature itself. Thus,
although the amendment to AS 28.05.151 certainly furthered the overall purpose of
AS 28.90.030, we do not read it as limiting the types of violations made subject to double
fines.
We conclude that while there are some aspects of the 1998 legislative
history contrary to the plain meaning of AS 28.90.030, evidence of a contrary intent is
not convincing enough to overcome the unambiguously comprehensive language the
legislature chose to adopt.
2. The legislature did not narrow the scope of AS 28.90.030(a) in
2006.
The legislature amended AS 28.40.070 in 2006 to extend the double fine
27 Fyfe, 334 P.3d at 186 (quoting ch. 64, § 1, SLA 1998).
28 Id. at 186-87.
-9- 7094
----------------------- Page 10-----------------------
29
provision to traffic safety corridors as well as highway work zones. The court of
appeals noted that the provisions of the "original act . . . repeated in [the 2006]
amendment are considered as a continuation of the original act," and it therefore
30
extended its analysis of legislative history to that surrounding the amendment.
As the
court of appeals also observed, the governor's transmittal letter accompanying the 2006
legislation indicated that the only change intended to the existing law was its extension
31
to traffic safety corridors, and there is no indication that the legislature meant to alter
32
the meaning or reach of the original statute in any other way. We agree with that part
of the court of appeals' analysis, but we reach a different conclusion because of our
different reading of the original statute.
Reviewing the 2006 legislative history, we again do not find convincing
evidence of a legislative purpose contrary to the statute's plain language. The committee
debate about traffic safety corridors did address the enforcement of drunk driving laws.
The Department of Transportation and Public Facilities presented maps to several
29 Ch. 45, § 4, SLA 2006. That legislation provided:
Whenever a person violates a provision of this title or a
regulation adopted under the authority of this title within a
highway work zone or traffic safety corridor, notwithstanding
the amount of the fine or the maximum fine set under this
title, the fine, or maximum fine, is double the amount
provided in this title.
30 Fyfe, 334 P.3d at 187 (quoting Green v. State, 462 P.2d 994, 1000 (Alaska
1969)).
31 Id. (citing 2006 Senate Journal 2037 (governor's January 31, 2006
transmittal letter for S.B. 261, 24th Leg., 2d Sess. (2006))).
32 Id. at 187-89.
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----------------------- Page 11-----------------------
committees that showed the fatal or major accidents between 1977 and 2005 on five
different stretches of road, identifying those accidents that involved drugs or alcohol; 33
34
legislators' responses showed clear concern with reducing such offenses. There was
some discussion in the Senate Transportation Committee in particular about ways to deal
35
with alcohol-impaired drivers.
On the other hand, there is no testimony directly linking the fine-doubling
provision to drunk driving, despite a number of references that make the link to
36
speeding.
And testimony by administration witnesses repeatedly referenced "traffic
33 See Working Files of Sen. Transp. Comm., 24th Leg., 2d Sess., Alaska Leg.
Microfiche Collection No. 12072 (containing maps of Parks Highway and Seward
Highway); Working Files of Sen. Fin. Comm., 24th Leg., 2d Sess., Alaska Leg.
Microfiche Collection No. 3080 (containing maps of Parks Highway, Seward Highway,
Sterling Highway, Palmer/Wasilla Highway, and Knik/Goose Bay Road).
34 Statement of Senator Hollis French at 1:39:42-1:40:03,Hearing on S.B.261
Before the Sen. Transp. Comm., 24th Leg., 2d Sess. (Feb. 9, 2006) ("The classic Seward
Highway accident is someone drifting into oncoming traffic. That really seems to be
what's killing people and for whatever terrible reason, it always seems to be that . . . a
younger, either intoxicated or speeding individual, is killing . . . folks my age.");
Statement of Senator Charlie Huggins at 2:18:45-2:19:03, Hearing on S.B. 261 Before
the Sen. Transp. Comm., 24th Leg., 2d Sess. (Feb. 9, 2006) (asking a trooper witness for
his professional opinion of the number of fatal accidents arising out of drug and alcohol
abuse).
35 See Comments of Senator John Cowdery at 1:45:52-1:47:15, Hearing on
S.B. 261 Before the Sen. Transp. Comm., 24th Leg., 2d Sess. (Feb. 9, 2006) (suggesting
impounding vehicles of intoxicated drivers even if the driver was not the owner);
Comments of Senators John Cowdery and Hollis French at 1:38:18-1:40:20, Hearing on
S.B. 261 Before the Sen. Transp. Comm., 24th Leg., 2d Sess. (Feb. 9, 2006) (discussing
use of concrete dividers to deter inexperienced or intoxicated drivers from drifting into
oncoming lanes).
36 Testimony of Lt. James Helgoe, Alaska State Troopers at 2:08:52-2:09:18,
(continued...)
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----------------------- Page 12-----------------------
37
fines" as the enforcement tool at issue, a category that could be read as excluding
36(...continued)
Hearing on S.B. 261 Before the Sen. Transp. Comm., 24th Leg., 2d Sess. (Feb. 9, 2006)
(stating that traffic safety corridors "will act as a deterrent against aggressive driving and
speeding" and that studies have shown that traffic safety corridors "create a calming
effect on the traffic and on the drivers because of several factors, one being the public's
awareness through campaign and through signage and also the risk of increased fines");
Testimony of John MacKinnon, Deputy Comm'r, Dep't of Transp. & Pub. Facilities at
2:34:20-2:34:33, Hearing on S.B. 261 Before the House Judiciary Comm., 24th Leg.,
2d Sess. (Apr. 12, 2006) (noting that speeding fines generally ranged from $75 to $100,
and that if "we double that[,] . . . that's a lot of money"); Question from Co-Chair Lyda
Green at 9:33:15-9:33:35, Hearing on C.S.S.B. 261 (TRA) Before the Sen. Fin. Comm.,
24th Leg., 2d Sess. (Mar. 21, 2006) (asking whether doubling fines in highway
construction zones had made a "noticeable difference" in speeding); Question of
Representative Mike Chenault at 3:48:08-3:48:26, Hearing on C.S.S.B. 261 (JUD)
Before the House Fin. Comm., 24th Leg., 2d Sess. (Apr. 25, 2006) ("But there's no
intent with this bill to change the current speed limit in the particular areas within the
zone? It's just to change the fine to a double fine if you're caught speeding?");
Testimony of Mary Siroky, Special Assistant, Dep't of Transp. & Pub. Facilities at
3:48:26-3:48:29, Hearing on C.S.S.B. 261 (JUD) Before the House Fin. Comm., 24th
Leg., 2d Sess. (Apr. 25, 2006) (stating that Representative Chenault's foregoing
assumption was correct, and that the bill was also intended to increase enforcement in
the traffic safety corridors).
37 See, e.g., Testimony of John MacKinnon, Deputy Comm'r, Dep't of
Transp. & Pub. Facilities at 2:20:53-2:21:04, Hearing on H.B. 417 Before the House
Transp. Comm., 24th Leg., 2d Sess. (Mar. 21, 2006) ("This bill is aimed at trying to get
a handle on driver behavior by allowing us to increase enforcement and collect double
traffic fines."); Testimony of John MacKinnon, Deputy Comm'r, Dep't of Transp. &
Pub. Facilities at 2:08:01-2:08:10, Hearing on S.B. 261 Before the Sen. Transp. Comm.,
24th Leg., 2d Sess. (Mar. 9, 2006) ("And along with the establishment of the safety
corridor and the associated signage is double traffic fines in that area and increased
enforcement."). But cf. Testimony of Jeff Ottesen, Director, Div. ofProgramDev., Dep't
of Transp. & Pub. Facilities at 1:37:56-1:38:02, Hearing on S.B. 261 Before the Sen.
Transp. Comm., 24th Leg., 2d Sess. (Feb. 9, 2006) (referencing "fines" generically but
noting that fines would be doubled for traffic safety corridors "like we now do for
(continued...)
-12- 7094
----------------------- Page 13-----------------------
criminal fines.
As the court of appeals acknowledged, however, legislators in 2006 could
have "assumed - . . . reasonably given the broad language of the statute - that the 1999
statute already doubled fines for criminal motor vehicle offenses committed in highway
38
work zones."
Indeed, a question by Representative Max Gruenberg - whether the
fine-doubling provision should be extended to Title 11 criminal offenses such as
vehicular homicide and assault with a dangerous instrument - suggested his
39
understanding that Title 28 criminal offenses were already addressed by the law. The
court of appeals interpreted the response from the Department of Law to mean that the
Department "did not understand the legislation to double fines for felony motor vehicle
40
offenses, which the Department pointed out already carried substantial fines." But we
consider the Department's response unclear and ambiguous at best; it could be read as
suggesting simplythat whether toextend thefine-doubling provision to criminal offenses
under Title 11 as well as the already-covered offenses in Title 28 was a policy call on
37(...continued)
construction work zones").
38 Fyfe v. State, 334 P.3d 183, 188 (Alaska 2014).
39 Question from Representative Max Gruenberg at 2:42:35-2:43:33, Hearing
on C.S.S.B. 261 (FIN) Before House Judiciary Comm., 24th Leg., 2d Sess. (Apr. 12,
2006); cf. Comments of Representative Max Gruenberg at 2:44:59-2:45:02, Hearing on
C.S.S.B. 261 (FIN) Before House Judiciary Comm., 24th Leg., 2d Sess. (Apr. 12, 2006)
(noting that Title 28 includes some criminal offenses).
40 Fyfe, 334 P.3d at 189 (citing Testimony of Peter Putzier, Senior Assistant
Attorney Gen., Dep't of Law at 2:44:22, Hearing on C.S.S.B. 261 (JUD) Before the
House Judiciary Comm., 24th Leg., 2d Sess. (Apr. 12, 2006)).
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----------------------- Page 14-----------------------
41
which the Department had not taken a position.
Again, the legislative history convinced the court of appeals that the 2006
legislature did not intend to change the reach of AS 28.90.030(a) apart from extending
it to traffic safety corridors, and thus it held that "the intent of the 1998 legislature
42
controls."
We agree that the intent of the statute remained the same, though we hold,
unlike the court of appeals, that the statute must be given its plain meaning. In short, we
do not find contrary legislative history in either 1998 or 2006 sufficiently convincing to
overcome the statute's plain language, especially in light of the broad legislative goal of
improving safety and reducing traffic accidents on the affected stretches of highway. We
hold that AS 28.90.030(a) applies to both criminal and non-criminal offenses in Title 28.
B. Alaska Statute 28.90.030(a) Does Not Double Statutory Minimum
Fines.
Since the fine-doubling provision of AS 28.90.030(a) applies to both
criminal and non-criminal offenses under Title 28, we must decide whether the provision
43
doubles a mandatory minimum fine like the one at issue here.
The statute provides in
relevant part that "notwithstanding the amount of the fine or the maximum fine set under
41 Testimony of Peter Putzier, Senior Assistant Attorney Gen., Dep't of Law
at 2:44:30-2:54:14, Hearing on C.S.S.B. 261 (JUD) Before the House Judiciary Comm.,
24th Leg., 2d Sess. (Apr. 12, 2006) ("I think that's primarily a policy call whether we
want to double the fines both for criminal conduct. . . . I think that doubling the fine for
felonies, for example, well, I believe reckless driving . . . is [in] Title 28. If we got into
the felonies, I think doubling it is probably sufficient.").
42 Fyfe, 334 P.3d at 189.
43 AS 28.35.030(n)(1) requires "a fine of not less than $10,000" for a person
convicted of felony driving under the influence.
-14- 7094
----------------------- Page 15-----------------------
this title, the fine, or maximum fine , is double the amount provided in this title."44 We
45
construe this language in accordance with the common rules of grammar,
by which
46 and also in accordance with the principle of expressio
"or" signals the disjunctive,
unius est exclusio alterius, which directs us to "presume that a statute designating only
certain powers excludes those not specifically designated."47 We also "presume that no
words or provisions are superfluous and that the legislature intended 'every word,
sentence, or provision of a statute to have some purpose, force, and effect.' "48 Applying
those principles, we conclude that minimum fines are not affected by the statutory
mandate.
Various provisions of Title 28 provide for three distinct types of fines:
fines in a set amount, maximum fines, and minimum fines.49 Alaska Statute
44 AS 28.90.030(a) (emphasis added).
45 AS 01.10.040(a) ("Words and phrases shall be construed according to the
rules of grammar and according to their common and approved usage."); Emp't Sec.
Comm'n v. Wilson , 461 P.2d 425, 428 (Alaska 1969) ("Because we may assume that the
legislature knew and understood the rules of grammar, we are justified in relying on such
rules in the interpretation of our laws.").
46 See Acosta v. City of Costa Mesa, 718 F.3d 800, 815 (9th Cir. 2013) (citing
"the common rule of statutory construction that gives disjunctive and distinct meaning
to items separated by the word 'or' ").
47 State, Dep't of Revenue v. Deleon, 103 P.3d 897, 900 (Alaska 2004) (citing
Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991)).
48 Adamson v. Municipality of Anchorage , 333 P.3d 5, 16 (Alaska 2014)
(quoting Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 345 (Alaska 2011)).
49 See, e.g., AS 28.22.019(c) (imposing a mandatory fine of $500 for failing
to have proof of insurance); AS 28.35.400(b) (imposing a maximum fine of $1000 for
reckless driving); AS 28.35.032(g) (imposing minimum fines for refusal to submit to a
(continued...)
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----------------------- Page 16-----------------------
28.90.030(a) specifically affects "the fine, or maximum fine." The State contends that
it was unnecessary to expressly list minimum fines because the term "fine" includes all
three types of fines. But then why list maximum fines separately? Answering this
charge of redundancy, the State contends that the legislature reiterated "maximum fine"
- even though already included in "fine" - to emphasize that AS 28.90.030(a) permits
the sentencing court to exceed the original statutory maximum; otherwise, the State
argues, a sentencing court might have assumed that the fine it imposed was still bounded
by the maximum originally set for that specific offense.
But the usual grammatical function of the word "or" is "to mark an
50 Thus, a word separated from another word by
alternative such as either this or that."
"or" is ordinarily "interpreted tomean something distinct."51 This means that "maximum
fine" is most likely to mean "something distinct" from "fine." And if the legislature had
instead intended "maximum fine" to be a mere subset of "fine," the most obvious way
to convey such an intent would have been with the words "fine, including maximum
52
fine."
49(...continued)
chemical test).
50 In re Jesusa V., 85 P.3d 2, 24 (Cal. 2004) (quoting Houge v. Ford, 285 P.2d
257, 260 (Cal. 1955)).
51 Acosta , 718 F.3d at 815; see also Chambers v. State, 811 P.2d 318, 321
(Alaska App. 1991) ("This use of the disjunctive 'or' in the federal definition makes it
apparent that the statutory language following the disjunctive - which is the disputed
language in this case - was not meant to modify or restrict the language that precedes
the disjunctive.").
52 See In re S.A., 912 P.2d 1235, 1245 n.3 (Alaska 1996), superseded on other
grounds by statute, ch. 99, § 1(b)(2)(B), SLA 1998, as recognized in Rowan B., Sr. v.
State, Dep't of Health & Soc. Servs., 320 P.3d 1152, 1158 n.24 (Alaska 2014)
(continued...)
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Concluding that the words "maximum fine" are not a redundancy, we
consider whether the legislature's express inclusion of "maximum fine" indicates its
intent to exclude "minimum fine." The principle of expressio unius est exclusio alterius
53 - supports that intent.
- with which the legislature is presumptively familiar
Assuming as we must that the legislature chose its words deliberately, avoided
redundancies, and omitted words it intended to omit, the phrase "the fine, or maximum
fine" in AS 28.90.030(a) does not include minimumfines. If the legislature had intended
AS 28.90.030(a) to affect the minimum fines set by Title 28, it would have said so
expressly for the same reason it listed maximum fines expressly - to signal that the
original minimum had been replaced by a new statutory minimum. Accordingly, we
conclude that the phrase "the fine, or maximum fine" refers to set fines and maximum
fines but not minimum fines.
Again, we would depart from this plain reading of the statute if we were
54 We will
convinced that a different reading was required by legislative history.
52(...continued)
("According to Webster's Third New International Dictionary 1142 (1969), 'include'
means 'to place, list, or rate as a part or component of a whole or of a larger group, class,
or aggregate.' ").
53 See, e.g., State v. Sutherland, 804 P.2d 970, 977 (Kan. 1991) ("The
legislature is aware of this court's established rules of statutory construction."); People
v. Costner, 870 N.W.2d 582, 585 (Mich. App. 2015) ("[I]t is presumed that the
Legislature is familiar with the rules of statutory construction."); GEA Integrated
Cooling Tech. v. State, Taxation & Rev. Dep't, 268 P.3d 48, 52 (N.M. App. 2011)
("[p]resuming the Legislature is aware of our case law, prior statutes, and canons of
construction," and concluding that the legislature's failure to require retroactive
application of new tax penalties meant that pre-amendment penalties applied to
assessment periods before amendment).
54 DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290, 295 (Alaska
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sometimes interpret a statute expansively if an expansive interpretation "will accomplish
beneficial results, serve the purpose for which the statute was enacted, [or] is a necessary
55 We have applied an expanded interpretation of a statute
incidental to a power or right."
when strict application of the expressio unius rule of construction would contravene the
purpose of the statute or make it illegal.56 But in the criminal context we have declined
to find additional sanctions implied in statutes that already enumerate sanctions, even
when an expanded interpretation would theoretically promote a statute's underlying
goals of safety and deterrence.57
The focus of AS 28.90.030(a) on set fines and maximum fines appears to
be a reasonable one. The legislature doubled fines in cases in which the judge has no
discretion about the amount - those involving set fines - and it doubled the maximum
in cases in which the judge's discretion to increase the fine was bounded by statute. It
left alone cases in which the judge's discretion to increase the fine was already
54(...continued)
2015).
55 Chevron U.S.A., Inc. v. LeResche, 663 P.2d 923, 931 (Alaska 1983)
ANDS, et al., SUTHERLAND STATUTORY
(alteration in original) (citing 2A C. S
CONSTRUCTION § 47.25 (4th ed. 1973)).
56
See Ellingstad v. State, Dep't of Nat. Res., 979 P.2d 1000, 1006 (Alaska
1999) (declining to apply a narrow interpretation that would impede the State's interest
in conveying land); Sonneman v. Hickel, 836 P.2d 936, 939-40 (Alaska 1992) (noting
that the fund in question would violate the anti-dedication clause without an expanded
interpretation).
57 See Sprague v. State, 590 P.2d 410, 415-16 (Alaska 1979) (holding that
punitive damages are excluded where a criminal statute lists fine or restitution for actual
damages as sanctions); Puller v. Municipality of Anchorage, 574 P.2d 1285, 1287
(Alaska 1978) (holding that refusal to submit to chemical test was inadmissible at trial,
since this was not among the enumerated consequences of the statute).
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unrestricted - those involving minimum fines. A judge applying a statute that sets only
a minimum fine continues to have the discretion to increase or double the fine to reflect
58
the fact that the offense occurred in a highway work zone or traffic safety corridor.
Thus all defendants convicted of offenses addressed by AS 28.90.030(a) face the
prospect of higher fines. Interpreting the statute to double minimum fines set under Title
28 would limit a sentencing judge's discretion in a way not mandated by the plain
language of the statute. Nor does the State point to contrary legislative history, other
than legislators' general statements about improving highway safety. We conclude that
an expansive reading of AS 28.90.030(a) is not justified.
Because AS 28.90.030(a) does not double statutory minimum fines, it does
not double the minimum fine set by AS 28.35.030(n) for driving under the influence.
V. CONCLUSION
We AFFIRM on different grounds the court of appeals' order vacating
Fyfe's $20,000 fine, and we REMAND the case to the trial court with instructions to
impose the statutory minimum fine of $10,000.
58 See State v. Chaney , 477 P.2d 441, 443-47 (Alaska 1970) (holding that the
court must impose a sentence that effectuates the defendant's reformation, expresses
community condemnation, reaffirms societal norms, and reflects the wrongfulness of the
defendant's conduct).
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