Kott v. State

KOTT, Petitioner, Casimer Alaska, Respondent.

STATE of

No. 5570.

Supreme of Alaska. 27, 1984.

Jan. Brunner,

Roger L. P. Ring- Kenneth stad, Rice, Hoppner, Brunner, Brown & Fairbanks, petitioner. for Jr., Doogan, James P. Atty., Asst. Dist. Fairbanks, Davis, Harry Atty., L. Dist. Fairbanks, Condon, Gen., Atty. Wilson Juneau, respondent. BURKE, C.J., RABINOWITZ,

Before COMPTON, JJ., MATTHEWS and CARPENETI, Superior Judge *. Court OPINION BURKE, Chief Justice. petitions hearing

Casimer Kott reversing a court of decision entered dis- estoppel grounds. trict court on collateral We affirm the decision of the court of appeals.

Kott and Roland Bonneville were Fair- police January banks officers. On 1979, they attempting videotape were they suspected individual whom of drunk driving. During videotaping an alter- filing cation occurred which led of a complaint against criminal Kott and Bonne- * Carpeneti, Superior Judge, sitting by as- of the Constitution of Alaska. IV, signment pursuant made Article section appeal may 202 states that an be taken to with assault of ville, charging them from a final videotape the court and erasure suspect superior entered district of the assault. destroy evidence cases, has a “[i]n jointly, tried The officers were before test appeal only After several jury, in the district court. ground on the indictment or days testimony, a mistrial declared R.App.P. too lenient.” Alaska sentence is against Bonneville as to but 202(c). question presented here is The case, of the the continued. At the close precludes language the state whether granted for trial court Bonneville’s motion seeking appellate from review of the dis- acquittal. After was judgment a of Kott grant judgment to a trict court’s decision date, attorney filed a his assigned new acquittal. of complaint the on collat- a to dismiss motion was estoppel grounds. The motion appear complex eral The is to more case made granted. petitioned thereafter really procedural The state it is because of its than of deci- superior for review that the court history. Apparently in that it the belief fur- the denied. On petition decision, sion was but the right appeal had no to appeals, the court of how- petition ther to 22.07.020(d)(2) Appellate AS and Rule of ever, was judgment of the district court 202(c), petitioned pur- the state review for Kott, (Alas- reversed, P.2d 622 State v. 636 Appellate suant to Rule 402. latter Kott, petition, by fol- App.1981). ka This partly: aggrieved party, “An in- provides, ..., lowed. cluding may petition ap- the state any ... pellate court to order or (1) petition: urges in his that AS Kott appealable ” decision of the trial not 22.07.020(d)(2) the state from precludes [Appellate] under Rule 202.... Alaska review; (2) fed seeking that the state and 402(a)(1). R.App.P. appeals The court of prohibitions against dou eral constitutional petition appeal, treat the an elected to jeopardy ble bar review of the trial court’s peti- its based determination (3) judgment acquittal; of and that challenged judgment. a final v. State collaterally relitigat from estopped state is (Alaska App.1981). P.2d ing in fact an assault occurred. whether appeal that The court concluded the state’s appeals had We hold that the court of 22.07.020(d)(2) by not barred AS petition, to that jurisdiction entertain the reversed. collaterally estopped is not state occurred, an assault relitigating whether quarrel do We court permissible and that a retrial is appeals’ judgment decision that the jeopardy double clauses of state do, judgment.2 awas final We federal constitutions. however, take issue with the court’s fur holding 22.07.020(d)(2) that ther AS did not Right Appeal I. to State’s appeal by the preclude an state. In so 22.07.020(d)(2) part, holding, appeals provides, in the court of relied on its Michel, right appeal v. 634 P.2d “the has no to in criminal earlier decision State state (Alaska App.1981), except sufficiency test the where cases to any a appeal appeal or or to held that “the state ... indictment information judgment ground it too le- adverse final trial court in a sentence on the Similarly, Appellate Rule criminal action ... for reason unless nient.” while 22.07.020(d) provides: appeal dictment or information or a sen- 1. AS to ground, that tence on the it is too lenient. appeal appeals matter An to the court of is a right proceedings within all actions and 2. the action below terminated (1) jurisdiction except right to its example complete A Kott. more appeal appeals to the court of is waived if imagine. hard final would be See appellant decision chooses City generally Borough & court; Juneau Thibo superior of the district court deau, 1979); 595 P.2d 631 n. 14 (2) the state has no in criminal Reed, (Alaska 1975). Jordan v. 78-9 except in- cases to test jeop- dy face, be barred retrial would double clause. On its prohib- the statute ardy clauses of the state or federal consti- its except appeals testing the suffi- (footnotes P.2d at 385 tutions.” omit- indictment, ciency information, ted). The court reasoned that extension, complaint.4 Numerous other strictly construing jurisdictions, the reasons interpreting stat- similar stat- providing utes, utes govern- have held that the state’s ment, i.e., prevent harassment sharply circumscribed. See State Lopez, by multiple prosecutions defendant drain- Ariz.App. ing away his financial resources and sub- Ulmer, (1976); 351 S.W.2d him jecting to the emotional strain of Garrett, (Mo.1961); 9-10 228 Or. pending proceedings, are more than ade- White v. (1961); quately interpre- answered the liberal 543 S.W.2d 368-69 (Tex.Cr.App.1976). jeopardy tation the double clause We note further legisla- when the of our state constitution. ture enacted AS Id. at 384-85.3 had the analogue federal to provision agree law, We cannot before it. AS 22.07.- Under federal the United 020(d)(2) merely jeopar- mimics the may appeal double States from an adverse deci- addition, 340, 347-48, (Alaska In 1969); court believed that its decision n. 21 348 Adkins v. State, 915, (Alaska was foreshadowed decisions of 1964). this 389 P.2d 916 An in- Shelton, 817, (Alas- notably State v. P.2d 368 820 dictment is insufficient if it fails either to in- 1962) (where ka an indictment is dismissed for adequately charges form the defendant of the reason, question sufficiency may its identify him or to the offense with suffi- review), Browder, create an issue State v. particularity resulting judgment cient so that the 925, (Alaska 1971) (nothing P.2d 486 931 in the may pleaded subsequent prosecu- be aas bar to requires Alaska constitution or Alaska statutes tions for the same crime. order, that an erroneous non-final favorable to recognized We have that the indictment or accused, uncorrected), stand and State v. has, information in addition to its functions as a Co., 293, (Alaska Marathon Oil 528 P.2d 296 instrument, charging purpose; another “to re- 1974) (state may appeal where defendant has quire a defendant to stand trial for offense [the] prevailed appeal following on the first con- his Shelton, charged.” with which he is State v. 368 viction). (Alaska 1962); Pete, 820 see State v. (Alaska 1966); Smith, 420 P.2d 341 State v. prior give guidance 4. Our cases some in deter- Thus, (Alaska 1966). 417 P.2d 254 if the mining appeal sufficiency when an tests the indictment is dismissed because the evidence charging an indictment or document, information. As insufficient, upon perjured which it rests is purposes the fundamental of the in- Johnson, (Alaska 1974); see v. State 525 P.2d 532 dictment or information "are to furnish the ac- State, (Alaska Taggard 1972); v. 500 P.2d 238 description charge against cused awith Parks, (Alaska 1968); v. State 437 P.2d 642 State prepare him to enable him to his defense and to Shelton, (Alaska 1962), v. 368 P.2d 817 or be- permit jeopardy him to claim double in the procedures leading cause of some defect in the again charged future should he be with the indictment, State, see Peterson v. 562 P.2d State, same offense.” Christie v. 580 P.2d (Alaska 1977); Smith, 1350 417 P.2d 252 (Alaska 1978), State, quoting 321 Thomas v. 522 Pete, (Alaska 1966); (Alas- v. State (Alaska 1974). P.2d State, 530 See Stewart v. 1966), ka so that the defendant cannot be called 1968); (Alaska 438 P.2d Thomas trial, to stand then the indictment is insuffi- State, Thus, (Alaska 1964). v. 391 P.2d cient, “regardless may of the fact that it meet all determining two of the basic criteria for statutory requisites the formal and have all the sufficiency of an indictment are "whether it Shelton, appearances validity.” P.2d at contains the elements of the offense be suggest 820. These cases two additional crite- charged sufficiently apprise so as to the accused ria, then, by sufficiency which the the indict- prepared of what he must be to meet at the trial,” ment or information is to be tested: whether charged and "whether the offense is iden- sufficient, sup- there was particularity credible evidence to tified with sufficient so that after indictment, port the plead whether the indictment the accused able to procedures comported themselves with statuto- in bar of further State, ry requirements. Appellate same offense.” Price v. constitutional 437 P.2d (Alaska 1968) (footnotes omitted). 331-32 cord, review from a dismissal either these Ac- based on State, permissible Davenport v. 543 P.2d n. considerations is 22.07.- (Alaska 1975); State, 020(d)(2) Christian v. "to test the of the indict- 513 P.2d (Alaska 1973); Roberts 458 P.2d ment or information.” Rule 402. no shall lie where late The court of de sion, “except that issue, stating: of the United jeopardy clause to address “It is clined this double prohibits prose- further necessary States Constitution for us to consider de ... § (as amended 18 U.S.C. cution.” argument court this lacks fendant’s words, 1971). federal statute In other petition as a jurisdiction to hear this matter in- plainly says what [given for review ... the court’s determina But Alaska to mean. terpreted the statute petition that it could treat as an right of if legislature our intended P.2d at appeal].” State 623 n. con- jeopardy limited double of our 1. Because decision that state alone, why it not sim- then did siderations obtain means could not adoption a more restric- ply say so? The must appeal, now be direct statute, face of a in the jurisdictional tive answered. contrary, persuades federal statute intend to legislature did indeed us that the Browder, ap- substantively the state’s limit 1971), we that “the limitation held peal. the state’s in a placed by the urged Finally, the construction to apply case ... was intended legislature en- mean state would jurisdiction is only to instances where our superfluous entirely statute. acted an sought by appeal.” to be invoked provision pro- contains a state constitution Although involved non- at 930. Browder subjecting a from twice hibiting the state order, distinguisha is therefore Const., art. jeopardy. Alaska defendant ble, it reflects our that an erroneous belief § I, read AS 9. To uncorrected, go simply should not decision a restatement of this constitu- more than it is to the favorable accused.5 thor- renders the statute prohibition tional Discretionary Appellate under Rule review oughly superfluous. “any order or 402 is available from decision reasons, with the disagree we For these appealable under 22.- interpretation of AS appeals’ court of subject petition and not to a Rule that the 07.020(d)(2), and its conclusion hearing under Rule in action or to the district entitled state was civil or criminal.” Alaska proceeding, To the ex- judgment acquittal. court’s 402(a)(1). Browder, in R.App.P. As noted contrary holding to- our tent that it is to have appellate if an court does not appeals’ in day, court of decision State opportunity to review lower deci Michel, (Alaska App.1981) P.2d 383 v. sions, the lower court the court of becomes is overruled. P.2d at 930-31. jurisdiction. final is that remains unanswered The jurisdic We are aware that some to obtain state was entitled whether the tions, means, question, in have held namely, addressing this appellate review other Appel- may peti- the state not seek relief pursuant review to that by petition for Browder, legislature holding not intend that the state from two The did 5. flowed Our First, appeals, right to in contrast have the to criminal considerations. should right, forms of unambiguous language. a matter of the other If and said so in case limi- have no review authorized 22.05.010 legislature that had intended state Second, placed them. we noted that on tation analogous right have some other or related or IV, Constitution section 2 of the Alaska article [i.e., remedy respect cases to criminal provides "supreme be part that the court shall by petition] that it we assume appel- highest with final court of so in in which it have said the same statute jurisdiction." late appealing prohibited the state from Keep, implicitly overruled State Browder cases. rehearing, on 397 P.2d aff’d (footnote omitted). P.2d at 975 While the (Alaska 1965). Keep, rejected the state’s we Browder, distinguishable, are see State cases petition argument that it had the Keep opin- the substance of the 486 P.2d appeal was barred. review in an instance where ion did not survive Browder. We noted: Others, however, an appeal.6 tion in lieu of assault The facts giving occurred. rise similar to have held that statutes AS 22.07.- application court’s of collateral es- 020(d)(2) exclusively to direct toppel relate opinion are set forth in below have no effect as a matter of on and need not be restated here. Suffice it review, discretionary such as con- forms of say judge acquitted Bonneville, certiorari.7 Af- stitutional or common-law principal alleged assault, in the issue, reviewing ter we are convinced attempted Kott acquittal to use this to bar nothing requires in AS his subsequent prosecution.9 ruling that an erroneous favorable to the (Alaska App.1981). uncorrected, go even if ruling accused the form of a final order. We thus facing narrow issue this court in Browder to encom- whether, holding case, extend our in a criminal a defendant orders, pass non-appealable all or non- invoke a grant final, appellate where review is not barred ed prior co-defendant in a case as a bar jeopardy double state and federal to his collateral es- guarantees. Discretionary review is avail- toppel require doctrine. The traditional threefold; Appellate able to the state under Rule 402 estoppel ments of collateral are cases, despite inability the state’s such (1) sought relitigated the issue must bring right. as a matter of Ac- precisely as the same issue in the cordingly, we the court of hold that previous (2) litigation; in the jurisdiction had to hear matter.8 prior litigation issue; must have decided the (3) there “mutuality” par must be Estoppel II. Collateral ties, i.e., estoppel collateral could be in “only by voked parties trial court determined common those who were privies principles estoppel law of collateral barred to the action in which the judgment Snow, Pennington relitigating the state from whether fact rendered.” Paul, 402(b) subject See State v. N.M. forth in Rule will we submit the (N.M. 1969) (the permit Appellate should not be modification of Rule 402 state to our Standing Advisory accomplish by on ted to certiorari what it Committee Criminal cannot 366, by Rules. appeal); do White v. 543 S.W.2d (to say (Tex.Cr.App.1976) by 368-69 that review question 9.There is no Kott can be convict- certiorari does not an constitute is to Bonneville, though principal ed even in the substance). make a distinction without assault, alleged acquitted. was Former AS 12.- provided: 15.010 559, Ariz.App. Lopez, 7. See State v. 26 accessory The distinction an between before 113, (1976) (may by way 115 of order principal, princi- the fact and and a between statute); appeal precluded by where pals ed; degree abrogat- in the first and second is Williams, (Fla.App.1969) 227 So.2d 257 persons and all in the commis- concerned (statute barring appeals has no effect on com- crime, they directly a sion of whether commit certiorari). mon law or constitutional or, constituting though the act crime not commission, present, aid and its shall abet in expressed 8. We are aware that the criteria tried, prosecuted, punished princi- be and 402(b) granting Rule for the of review are di- pals. allowing propriety rected of toward the interloc- 11.16.120(a)(2)(A), became which effective 402(b) utory review a case. Rule states 1, 1980, January provides that in a criminal granted only that review "will be where the legal accountability in which policy requiring appeals sound rule behind the person based on the conduct another it is not of judgments to be taken from is out- person a defense that "the has not been other weighed." balancing process ap- Such a is not prosecuted of an for or convicted offense based propriate where in all cases review is made the conduct in or has been con- 402(a)(1). apparent available Rule It is degree victed of a different or of of- offense applied must other considerations in an Commentary fense." In its on the Alaska Re- appellate court’s consideration whether to Code, Judiciary vised Criminal Senate Com- grant review from final orders in criminal provision mittee stated that “eliminates the cases. accessory's princi- defense that the common law today’s pal In view of the fact that decision ren- has not been 1978 Senate Jour- convicted.” reviewability Supplement incomplete ders the criteria for set nal No. 47 at 3. 392 cannot, do) definition, 1970); gener the latter

P.2d 374-75 see (1966). charged. have the criminal act Penning In committed 9 A.L.R.3d 203 ally impossible ton, Taylor, As it is Jackson Bernhard v. Bank we followed 807, 122 (1942) charged have the crime America, to committed 19 892 Cal.2d “mutuality estoppel will alone. and held that necessary for the invoca not as rule be a Cal.Rptr. (emphasis original). 118 at 707 estoppel collateral judicata tion of or res cases, In to these contrast United P.2d at against 471 party.” a recently upheld Supreme States Court privy nor party

who was neither requirement mutuality in the criminal Bonneville, asks that we ex action States, v. area. See United 447 Standefer mutuali and abandon the Pennington tend 1999, 64 U.S. 100 S.Ct. L.Ed.2d context. ty in the criminal rule (1980). cases, Court, Criminal said primarily People relies on defendant present from considerations different those Cal.Rptr. Taylor, 12 Laboratories, v. Cal.3d in Blonder-Tongue Inc. v. Jackson, (1974) People and Foundation, University Illinois (1975). Cal.Rptr. Cal.App.3d 1434, 28 U.S. 91 S.Ct. L.Ed.2d 788 Supreme In Taylor, the California (1971), Shore, Hosiery Parklane Co. identity concluded that the lack 645, 58 439 U.S. 99 S.Ct. L.Ed.2d 552 parties application of the preclude did not (1979). First, government is often estoppel an collateral “where doctrine of opportu- without the kind of “full fair predicated his guilt must be on accused’s nity litigate” is the hallmark of previous- acts of liability for the vicarious estoppel: ly confederate.” acquitted rights prosecution’s discovery [T]he appli- Taylor court found the 630-31. limited, criminal cases are both rules estoppel to mandated cation of collateral privileges; and constitutional it policy considerations: important three prohibited being granted a from direct (1) by mini- promote judicial economy obtaining judgment ed verdict or from (2) repetitive litigation; prevent mizing notwithstanding the verdict matter which judgments undermine inconsistent support how evidence in clear the integrity judicial system; 50; guilt, cf. Fed.Rule Civ.Proc. cannot (3) repose by preventing a provide ground secure a trial on the new person being harassed vexatious contrary plainly litigation. evidence, weight of the cf. Fed.Rule Civ. 59; appellate Proc. it cannot secure P.2d at 628. review where a defendant has been ac Jackson, Ap- the California Court of quitted. Ball, See United States collat- peal extended the use of nonmutual U.S. S.Ct. [16 1195] involving estoppel eral to criminal cases (1896). L.Ed. 300 joint responsibility.” “interdependent 22, Standefer, 447 at 100 at Cal.Rptr. 118 at 706-07. Defendant Jack- U.S. S.Ct. 2007, 64 charged Secondly, son had been L.Ed.2d at 699. and two others acquittal estoppel in Following application of nonmutual crimi- conspiracy. others, problematical nal cases made the ex- the court held state was estoppel prose- istence of and barred collateral from rules of evidence exclusion unique Finally, cuting the criminal law. crimi- Jackson: prosecutions nal involve considerations the defendant could not have Taylor wholly litigation: impor- absent in civil alleged crime committed the unless public tant in effective en- interest law perpetrator previously acquitted had forcement. Similarly, crime. committed said unless co-conspirators] purpose a criminal court is not alleged en- [Jackson’s [T]he provide gaged conspiracy a forum for the ascertainment in a with Jackson (which private is to they rights. Rather it vindi- it has been determined did

393 public cate the interest the enforce- state’s need to have a full and fair adver- criminal ment of the law while at the sary proceeding outweighs the interest safeguarding rights same time promoting judicial economy by minimizing public defendant. The repetitive individual interest litigation. Accordingly, we af- accuracy justice of criminal firm the appeals court of and hold that greater results is than the concern for collateral estoppel preclude did not judicial economy professed in civil cases state from relitigating whether in fact an reject, and we are thus inclined to at assault occurred.10 matter, general least as a a rule that III. Jeopardy Double spread the effect of an erroneous

acquittal all participated those who argues Kott remanding particular criminal transaction. To ease for trial would contravene the state plead crowded dockets as an excuse for prohibition and federal against twice sub trying criminal defendants in our jecting a criminal defendant to jeopardy. view neither in the best interests of the disagree. We courts, public. nor the As the appeals court of noted in this 25, 2008, 447 U.S. at 100 at S.Ct. 64 L.Ed.2d case, judge the trial neither heard “[h]ere (quoting at 701 Standefer, United States v. all of the against respondent evidence nor 1076, (3d Cir.1979)). 610 F.2d 1093 concluded that jury a reasonable could not appeals,

With the court of we are him guilty beyond find a reasonable doubt persuaded by reasoning Rather, based that evidence. he con- Standefer. noted, As the court “there is no cluded that previ- of harassment pros ously successive entered in favor of a codefendant once, ecutions of one who is tried but barred trial of under the doctrine of [Kott] though a might co-defendant estoppel.” earlier have collateral 636 626; 622, been tried.” P.2d at compare P.2d 623-24 App.1981). The People 686, Taylor, jury Cal.3d had empaneled sworn, not been 622, (Cal.1974). Nor are and there is no indication that the defend- swayed by we might fact that Kott ant had jury waived his to a trial. At convicted in time, therefore, the face of Bonneville’s earlier subjected was Kott acquittal; possibility merely recog conviction, the risk of consequently simple, nizes “the if discomforting, reality jeopardy did not attach. It' is immaterial juries may ‘different reach different judge that the trial reviewed the court file results under presented statute. That is and the against evidence in Kott consequences one of the accept we original action Bonneville. The ” jury system.’ our Standefer, 447 U.S. at fact prior swearing is that at no time to the S.Ct. 64 L.Ed.2d at jury 701 of the could the defendant have been (quoting States, Roth v. subjected United 354 U.S. to the “risk of a determination of 492 n. guilt, S.Ct. 1313 n. ... and neither an nor further (1957)). L.Ed.2d n. Finally, jeopardy.” constitutes double States, like the court of we believe that the See v. United 420 U.S. Serfass jurisdictions requirement Having 10. Most retain the determined that the state was barred mutuality estoppel relitigating in the criminal collateral area. See State v. the issue occurred, Jiminez, (1981); of whether an assault the trial court 130 Ariz. complaint charging Wilson, 429, dismissed Count II of the 236 Iowa 19 N.W.2d unlawfully destroying Kott with evidence "con- (1945); Scala, Mass.App. Commonwealth v. cerning commission of the crime of assault (1979); 392 N.E.2d 869 Larsen v. crime, battery.” being There reasoned the (1977); Felton, People Nev. court, there could be of no destruction (N.Y.Sup. 95 Misc.2d 408 N.Y.S.2d 646 evidence of a crime. as the Inasmuch 1978); Ryan, App. Cleveland v. 106 Ohio applying estoppel, in erred however, nonmutual collateral (1958). generally, 148 N.E.2d 691 See 9 A.L. necessarily dismissing it erred in the (1966). R.3d 203 evidence destructioh of count. 1055, 1064-65, prior to enactment 43 L.Ed.2d been construed mean 391-92, 95 S.Ct. 22.07.020(d)(2). (1975). of AS 265, 276 general rule law was Appeals the of The at common of The decision could in a criminal that the State not AFFIRMED. Sanges, In U.S. case. United States MOORE, J., participating. (1892), the 12 S.Ct. L.Ed. 445 court, making after an exhaustive MATTHEWS, Justice, concurring. authorities, up pre- the of State summed III the parts II and of agree I as vailing viéw follows: collateral opinion which concern majority But the decisions above cited conclusive- respectively. estoppel jeopardy, and double law, that under ly show the common I part opinion, the respect I of With in administered generally understood and only. in the result concur States, of the the absence United jurisdiction of defining the The statute right to any expressly giving statute the 22.07.020, appeals, of the court AS State, writ of sued the a error cannot be Legislature in by the passed Alaska State judg- in criminal a final out a case after language question in this defendant, ment in favor of the whether (d)(2): of case is that subsection upon has a judgment been rendered right appeal in crimi- the has no State acquittal, upon or a determina- verdict sufficiency of except to test the nal cases law. In the court of an issue of the indictment information.... case, defendant, having the either been discharged by put upon his trial and once taken, language was without substan- This again is not vexed for the the to be change, from former AS 22.05.010 tial cause, legislature, acting unless same jurisdiction Supreme defining the authority, has within its constitutional 22.10.020(a) Court;1 defining and from AS express provision a review of made superior jurisdiction of the appellate at the insistence language these The relevant court.2 government. Alas- was first enacted two statutes Legislature the advent of state- ka State L.Ed. at Id. at S.Ct. at §§ 1, 17, hood, and has ch. SLA plain The court that this 448-449. made it change. without Because there generally continued law rule was based on common contrary, and legislative history to the than grounds is no rather constitutional double nearly language was identical jeopardy: used, legislature clearly intended states, denying few decisions language used error to the after writ of State used in language mean what would acquit- the defendant on a verdict of 22.10.020(a) AS 22.05.010 and AS former proceeded upon ground tal have Any other conclusion would had meant. it him twice in grant put would be to legisla- preposterous. If the on border constitutional jeopardy, violation of a meaning had intended different ture provision. phraseol- merely copied not have states, many the courts of includ- But the earlier statutes. ogy of authority, have ing great some denied, right upon grounds, the former broader becomes what error in bring the State to a writ of meant. There are two levels

statutes whatever, case even when pertains to the historical criminal inquiry. The first discharge The sec- of the defendant was type. of this purpose of statutes by the of an law statutes had the decision issue of to what these pertains ond 22.10.020(a) provides part: provided in relevant in relevant 2. AS AS 22.05.010 1. Former appeal in criminal has no part: State shall have no "[t]he cases, "the cases, sufficiency indict- except except test of an to test the information...." or information." ment or indictment indictment, as on demurrer may issue, to the create an and this court has quash, special verdict, power motion to mo- review. judgment. in arrest of at (emphasis added). Id. language This only can reasonably read to mean that

Id. S.Ct. at 36 L.Ed. at 447 22.05.010(a) former permitted AS the State (citations omitted). appeal any dismissal of an indictment or purpose of statutes like AS 22.05.010 today, information. Until so far as I am prose- was not to constrict the aware, interpretation this of Shelton has appeal, preexist- cution to for that was the questioned. never been rule, ing common law provide but to The rule interpretation governs which exception to the common rule and al- law this case is as follows: appeal. low the This is dis- Where a statute has received a contem- length majority opin- cussed at in both the poraneous practical interpretation dissenting opinion ion and the of Mr. Jus- and the interpreted statute as is reen- Sisson, tice White United States v. acted, practical interpretation is ac- 267, 293-307, 335-349, U.S. 90 S.Ct. greater weight corded than it ordinarily 2131-2138, 2153-2160, 26 L.Ed.2d 626- receives, regarded and is presumptive- (1970). Therefore, 649-657 from an ly the interpretation correct of the law. perspective, historical purpose Because court decisions readily are ac- statutory language permit is to the State to view, public cessible to the rule spe- has appeal in the circumstances described cial force when the former construction the statute. was made judiciary. Thus where Shelton, (Alaska State 368 P.2d 817 legislature adopts legislative ex- 1962) gave this court reading a broad to the pression which has judicial received inter- language permitting of AS 22.05.010 pretation, interpretation such pri- will be sufficiency State to to test the of an ma facie legislative evidence of the in- indictment. In Shelton the indictment had tent. been dismissed on grounds that it was Sands, 2A C. Sutherland Statutory Con- perjured based on testimony. As in the § 49.09, (4th 1973). struction at 256 ed. case, present there nothing wrong Thus, the legislature reenacted the with the form of the indictment. The trial language formerly contained in AS 22.05.- simply concluded that a substantive permitting State to to test legal required doctrine dismissal. We re- sufficiency indictment, of an logically jected the view statutory term presumed can legislature in- “sufficiency” only related to the form of tended language the reenacted to mean the indictment and held the State could formerly what this court had said it meant. raise on validity of the rationale is, meaning seen, That as we have underlying dismissal the case. In so may appeal State an indictment is “[w]hen ” holding we stated that “sufficiency”: any Shelton, dismissed for reason .... concept denotes the adequacy course, 368 P.2d at 820. Of grant such a adaptation to a An desired end. indict- power is limited constitutional double purpose require ment has a a defend- However, jeopardy. necessary it is not —to ant to stand trial for a criminal offense express in statutory terms this limitation. charged. with which he is If it is not To superfluous. do so would be Because adequate purpose to answer interpretation is not different intended, it is which then it is insuffi- the court cient, regardless of the fact that it Michel, formal statutory requisites meet all the App.1981)which was in turn relied appearances all the validity. and have upon by case, present that court in I an indictment is dismissed When affirm appeals’ interpre- the court of reason, its tation. 22.07.020(d)(2) opinion it had majority of enacted AS an the The conclusion may it may appeal analogous not but federal it. statute before This that the State explicitly for review was petition wrong except a is in the rather take statement Keep, rejected in State meaningless legislature sense the that had was (Alaska 1965). Keep, complaint In the the federal statute available reference. and the State began after trial dismissed also have looked legislature The could at a by petition challenged the dismissal any concerning statute of other state the that the state held review. We appeal, but there is prosecution’s it from appeal the could not did, just that as there is no evidence no Doing petition for review. could not take actually the legislature that con- evidence accomplish “the permit so state leg- the federal the sidered statute. What doing prohibited from indirectly it is what clearly to consider the islature did was by at 975. statute.” Id. interpreted Alaska statutes which had been holding seems correct logic of this by language this court and which the from today’s directly attacked and it is not 22.07.020(d)(2) copied. of AS was majority the majority opinion. Instead Second, majority opines the that the con- Keep implicitly that overruled holds we of AS the struction (Alaska Browder, 486 P.2d 925 of would render that subsec- court people 1971). very I think few reasonable superfluous tion as no more than a restate- Keep reading Browder would conclude prohibition of the ment constitutional Keep, as to be overruled. was intended However, jeopardy. double as we recalled, acquittal after will involved an be established, per- have from an historical involved a con begun. had Browder spective wrong. pur- this statement is level, by the at the trial an viction pose of statutes like that involved here was superior acting as defendant to appeal. state Without to allow the appellate a reversal an intermediate statutory express grant of the court, and a superior and remand appeal, the traditional view has been that petition for review the state in a the State court. superior court to this order of the case.3 jurisdiction to enter we had We held that Keep on petition distinguished and tain the summary, of the court decision of ac that a final grounds this case and in Michel is con- not in quittal Keep, involved in but purpose with the sistent historical pains took in Browder We Browder. question; statute is consistent with Shel- “a holding petitions taken from limit our Keep; and with the ton is consistent Id. non-final order or decision....” copies a legislature rule that when lan- separate in two at 931. We have interpret- guage judicially which has been together, Keep cited Browder cases ed, interpretation presumed to is Gibson, 406, 408 n. By legislature intended. con- what Co., (Alaska 1975); Oil State Marathon trast, reasoning majority opinion 1974), and, 295 n. purpose is in conflict with the historical suggested that today, until we have never question; language is inconsistent with way is in inconsistent Browder Shelton; requires holding with Keep. overruled; Keep fails to deal with the merits, holding Keep on but rea- its own majority’s with the I also take issue First, Keep unjustified position has respects. takes soning in two further overruled; ignores legislature already been states that when majority model, Further, (at-) super- statutory majority guilty as a superfluity in the sense prohibition sure- repetition fluity. of constitutional shall lie when double ["... ly legislative of the most minor of sins of a jeopardy one Constitu- clause the United States statute, example, draftsman. For the federal prohibits prosecution.”] further (as 1971), by the U.S.C. 3731 amended cited § rule of construction that reenacted lan-

guage meaning imparted carries it the

by prior published judicial decisions. For agree

these reasons I with the court of disagree majority with the

opinion. HARRIS, Appellant,

Malcolm Scott Alaska, Appellee.

STATE of

No. 6580. Appeals of Alaska.

Feb.

Case Details

Case Name: Kott v. State

Court Name: Alaska Supreme Court

Date Published: Jan 27, 1984

Citation: 678 P.2d 386

Docket Number: 5570

Court Abbreviation: Alaska