*1 reducing the amending judgment to months. imposed six
sentence superior court future when the
In the apply a appeals, it shall
hears sentence consistent scope of review
standard and opinion. expressed in this the views Petitioner, Alaska,
STATE of BROWDER, Respondent-
Richard F.
Cross-Petitioner.
No. 1323.
Supreme Court of Alaska.
July 1, 1971. *2 Wagstaff,
Robert Boyko Walton, H. & Anchorage, for respondent cross-peti- and tioner. BONEY, DIMOND,
Before J.,C. and WITZ, CONNOR, ERWIN, RABINO and JJ-
OPINION RABINOWITZ, Justice. presents questions
This case important concerning the rights of one direct accused of and the jurisdiction extent of our in the review at cedural context of the case bar. FACTUAL PROCEDURAL AND
BACKGROUND approximately On March at Brewer, m., p. Judge presid- Joseph while ing municipal arraignments in over the Mu- Court, nicipal Division re- District quested bring bailiff to Richard F. After Browder into the courtroom. courtroom, brought in he Browder was name, whether he was the was asked his person the courtroom who had entered engag- and if had shotgun, he earlier with explanation, if what ed such conduct explained had offer. Browder any, he his to leave friend’s did not wish that he vehicle; that he shotgun an unlocked shotgun broke and unloaded therefore entered the court- and that he then open; long the owner ascertain how room to remain have weapon would proceeding, point thisAt courtroom. his Browder informed Judge Brewer could characterized conduct by a fine of punishable contempt of court imprisonment. 6 months’ up to $300 statu- Alaska’s reading to Browder After contempt, Judge governing provisions tory told Browder Brewer ** * car- the court into coming * * * though it even shotgun rying carrying breach broken were was, sir, direct pocket your shells and is contuma- contempt of Atty., Eastaugh, Robert L. Asst. Dist. authority of upon reflects Anchorage, Atty., cious Tobey, Harold W. Dist. dignity impairs Edwards, Gen., this court Atty. Juneau, G. Kent it. Under- have I will petitioner. stand that? Furthermore a charge ing at Anchorage, Alaska; “[t]hat contempt of court is not one to which entering the State Court Building an Alas- you * * * * * plead can guilty guilty. ka State Trooper directed [his] companion to unload and break his shot- * * *” gun. *3 Thereafter, Browder was his then sentenced companion to six complied with request in the months the and Anchorage Jail, they and re- were “permitted enter, attend, manded to custody the the and depart bailiff. the District Court that was then session, Thereafter, 31, 1970, on March with the * * *' * * * shotgun remaining counsel, filed, assistance Browder in the at all times in possession court, [Browder’s] superior a complaint for a writ of companion.” left, When they Browder and corpus. habeas April On Browder his companions to the drove Municipal additionally filed appeal a notice of from Division of the District Court. Browder contempt his conviction and from the sen- states that subsequent to their arrival at imposed. which appeal tence was his the Municipal Court Division building and action, corpus and habeas Browder assert- after delay, some Judge Brewer, that sitting ed as city * * * he went magistrate, into lacked for took [and] the above contempt him, shotgun since described neither the nor the with charter broken at the unloaded, and city Anchorage ordinances of the breach grant- be- cause he did not want to power; ed him this that sentence im- leave shot- gun in the truck posed permissible exceeded the maximum as truck could not sentence, be locked and days he was afraid fine or that incarcera- $300 tion, shotgun stolen, might all crimes charter of city of Anchorage; the court’s That he entered courtroom and judgment was that it defective did not companions went to his two who were contain a sufficient factual recitation show- sitting in approximately third row “legal ing requir- of court as is court, spectators gave keys and by Civil ed Rule he was de- 90(a)”;1 to the truck to owner its actual and ask- trial; his to a and that he nied companions long they ed his how would guilty as matter of was court, inbe l.aw. completed had That as as he soon corpus appeal matters and habeas inquiry and turned leave the court hearing were thereafter consolidated requested bailiff approached him In connection superior before court. court, he from the remove himself Rich- proceedings, the superior court with court did That at time he no while Browder filed an affidavit ard disturbance, noise, cul- he make loud events which his related version way conduct himself Ac- or in gestures, conviction. his minated 23, 1970, calm, and nor- reasonable Browder, other than in March cording to specta- accompanied any other he mal manner as p. m. 1:30 approximately * * Build- Court tor *. companions to the State would two filed, carrying shot-gun Judge 23, 1970, April 2, 1970, Brewer of March 1. On dismantled, open pro but tunc of March at the breach nunc per- judge’s contempt. carrying shot-gun cer shells on his certificate part ; follows: son reads in tificate argument Judge, following I, Joseph Brewer, District That J. District, Alaska, bailiff to remove I Judicial bailiff directed State of Third premises hereby certifying the above-named the defendant from persons pres- safety defendant, all F. Browder entered interests of Richard ent; located at District Court courtroom subsequently Street, Anchorage, I the bail- directed That Sixth Avenue and C bring during back iff the defendant Alaska of criminal the session * * shot-gun courtroom, arraignments *. minus the the afternoon therein on ¡eft Browder, he then interruption court’s business and an According' minutes, the bailiff continuity arraignments” Within courtroom. because to re- requested him appearance of Browder’s unusualness Browder found return, Upon his and actions. the courtroom. turn im- to six months’ sentenced Browder counsel, hearing argument After from contempt of court. prisonment Superior Judge Court Eben H. ruled- Lewis opposition itsof As Judge correctly Brewer in order- acted Judge filed Brewer’s of Alaska the State ing Browder’s removal the courtroom affidavit, Judge Brewer In this affidavit. Judge “had a because Brewer reasonable that: states legitimate safety concern for the present 2:20 in that p.2 m. and himself others court- between At sometime *4 Brewer, room”; a Judge ar- that as district m., occupied with criminal p. while powers; judge, possessed contempt appearance the he noticed raignments, to pertaining statutes carrying a shot- that under Alaska’s an individual court an contempt, individual dressed “the conduct was individual gun, which vest, proceedings or to disrupt the the tending to a leather overalls denim authority court must be impair of the the im- the him gave of which pocket breast also Judge Lewis of a willful nature.” for the shot- shells it contained pression concluded, of Baker guided by the rationale the across lettered ‘Brothers’ gun, with '* * (Alaska Fairbanks, City of 471 P.2d *. back to was entitled a 1970), that Browder found says that he Brewer further Judge willfully he whether the issue of trial on shotgun the with appearance Browder’s or im- proceedings disrupt intended to he believed and, because “shocking” Ap- court. authority the district pair the very start well might carrier “shotgun to controlling significance parently of courtroom,” for feared up shooting Judge in his resolution Lewis as the courtroom persons safety of the this in Baker that was the fact trial issue safety. personal own for his well as constitu- Alaska’s declared that under court Browder, Brewer Judge to appeared to entitled demand is tion an accused bailiff, “showed by the approached when prosecution, although he leaving to opposition some violation under state law gestures threatening with no made defined * further city Baker ordinance. judge *. estimated shotgun The as prosecutions category “criminal” episode approximately lasted one the entire penalty Judge According “including any to offense minutes. one-half Brewer, jail or “there in a disruption was a may incarceration produced Motorcycle Club, ap- 2. The state also then affidavit of Brother’s Barbariek, proached John Michael bailiff members of court courtroom; group the District Court in the State of seated Alaska, Municipal Division. In his affi- davit, that he the bailiff states that on Affiant told carrier would the after- get shotgun persons the court- noon of out of March “several to have replied room, known to him to be members of and the individual Motorcycle unloaded; present Brothers Club” were * * Joseph Judge in the J. Brewer courtroom. Mr. Barbariek further arraignments interrupted to order states that man; [d]uring arraignments, in- remove affiant long build, first, acted dividual of thickset individual with At being beard, going appeared though hair contest and a in the court- he was wearing leave; vest, room a brown leather ordered levis, boots, shotgun, carrying the individual Affiant escorted breach; courtroom; broken shotgun carrier, of one a total lasted The incident who was known The to affiant minutes. another member of the and one-half one penal way dictum, By institution.”3 In sketching constitutional, statutory, Judge Lewis made the that “it observation and regulatory scheme whereby appellate goes saying without that with that review of lower had, court decisions IV, trial of course there was article section 15 of the Alaska Consti- counsel.”4 The case was then remanded tution is also relevant. This pro- section district for trial in accordance vides in that: Judge Lewis’ decision. supreme court shall pro- make and petitions State of Alaska now this mulgate rules governing'the administra- seeking of Judge review Lewis’ rul- tion of all courts. It shall pro- make and ings that Browder was entitled counsel mulgate rules governing practice and pro- and a trial on the issue of whether cedure in civil and criminal cases in all willfully disrupt he intended to courts. ceedings impair authority dis- Acting authorization, cross-peti- trict court. has also Browder court promulgated regulatory three provi- seeking de- Judge tioned review of Lewis’ sions pertinent which are jurisdic- Judge possessed terminations that Brewer tional issue present case. con- contumacious Court 6Rule reiterates the legislative pro- duct; limited Judge Brewer was not *5 hibition, 22.05.010, contained in against AS permitted the maximum sentence right appeal state’s to in a criminal charter; city Anchorage’s of that the case. Rule provides: face; order of was not void its appeal An may be taken to this court Judge hold that he Lewis’ failure to from final judgment entered guilty not a matter of of superior court or a judge any thereof in law. action or proceeding, criminal, civil or IN GENERAL except JURISDICTION that the state shall a right have appeal in criminal cases only to test the IV, 1 of the Alaska Article section Con- sufficiency of the indictment or on the juris-
stitution that “The ground that the sentence is too lenient. diction prescribed by of courts shall be law.” leg- Pursuant grant to this Exercising grant supervisory pow- islature in ju- 22.05.010delineated the ers IV, conferred Article Section 15 of risdiction of the Alaska Supreme Court of Constitution, the Alaska promul- this court in the following manner: gated Supreme Court Rule in part: vides supreme appellate The court has final jurisdiction in proceed- all actions and aggrieved party may petition An ings. in- supreme may court issue court for review of order or deci- review, mandamus, junctions, writs of sion of the not otherwise certiorari, prohibition, corpus, and habeas appealable in any under Rule action or necessary
all proper other writs or proceeding, criminal, civil or as follows: complete * jurisdiction. exercise of its ** appeal supreme An n jfc n n n n right, except is matter that the state (c) affecting From order a sub- appeal shall right have no in criminal in an action proceeding stantial or cases, except sufficiency test (1) which either in effect terminates the indictment or hear proceeding prevents information and or action and a final [to appeals grounds therein; judgment (2) on the sentence or discontinues action; is excessive or (3) grants too a new trial. lenient]. Fairbanks, Judge Baker v. that since Brow- Lewis concluded (Alaska 1970). available the now had counsel der really an issue counsel was case. key to the resolution or decision order such (d) Where part to be found conflict is for the most law question of controlling involves provisions of think AS 22.05.010. We ground is substantial there to which prescrib significant legislature im- and where opinion, difference pro specifically ing jurisdiction this court’s order of such present review mediate supreme may vided that “The issue materially advance may or decision review, mandamus, injunctions, writs of litigation. termination ultimate certiorari, prohibition, corpus, habeas review un- postponement (e) Where necessary proper all other writs final from a be taken appeal til jurisdiction.” complete exercise of its injustice because result judgment will provision our view this is a clear manifes right, or because legal impairment of legislature’s intent tation of the delay, hardship unnecessary expense, supreme court would be able to exercise factors. related other than appellate jurisdiction final necessi appeal. This conclusion turn makes clear Rule 24 Supreme Court question consideration of the tates discretionary and review the allowance of these of review are limited other forms power of of this concomitant is, appeal; the same restriction as provides: Rule 24 supervision and review. in criminal they unavailable the state be a matter A shall review cases? only: (1) granted right, but will placed hold that the limitation We sought to be or decision where order appeal the state’s a crim- and im- substance is of such reviewed case, 22.05.010, inal was in- found AS deviation from portance justify as to apply only instances where our tended by way of procedure appellate normal *6 jurisdiction sought ap- is be invoked at- the immediate require appeal and peal. clearly distinguishes 22.05.010 AS Court; (2) where tention of this appeals and other forms of re- between rule of policy general sound behind limited, specifically are Appeals view. only from appeals to be taken requiring whereas the other forms review author- outweighed is judgments final 22.05.010, ized under AS virtue justice case claim of the individual * * * necessary “all language writs present and immediate review demands a * * * * * complete exercise of non-appealable order or particular of a no supreme jurisdiction,” have [the court’s] decision; court superior where the (3) or placed limitations them. accepted departed from the has so far proceedings, and usual course textual-grammatical In addition to this departure by far sanctioned such so 22.05.010, analysis that arti- of AS we think IV, tri- an inferior court administrative cle section 15 of the Alaska Constitu- tion, policies underlying reflected in bunal, call for this court’s as to provision sup- of our constitution lend supervision and review. port to is the conclusion the state jurisdictional problem The crux invoking jurisdic- barred from our review ap- is confronting the court in this case tion in criminal matters. parent prohibitions conflict between the IV, Article section 2 of the Alaska against appeal found criminal state provides part that “The Constitution su Supreme Court Rule AS 22.05.010 preme be the highest shall court of court discretionary and the re- authorization State, appellate jurisdiction.” final superi- any view of order or decision of the court, prohibit appealable construed to If AS 22.05.010 otherwise any chal- proceed- court’s review of actions Rule action or state, would then a conflict ing provided lenged by for in Court Rules IV, section 2 of the article 23 and arise between
¾31 Acceptance 22.05.010. reviewed involves a non-final constitution AS order or de- cision of superior in the context of the this construction court. superior at bar would mean case IN THE CASE court, highest rather than this JURISDICTION AT BAR of final possessed appel- of the state
court
jurisdiction.
court would then be
late
This
Determination of whether we have
only
reviewing
those cases where
limited to
jurisdiction in
at
bar initially
case
in
conviction had been obtained and a de-
a question
proper
volves
character
that a
appealed.5
fendant had
We believe
ization
present
proceeding. As was
car-
construction of
22.05.010 which
previously,
mentioned
superior
court
on the state’s
ries over the limitation
reversed the
district court’s
con
appeal in
to other
criminal matters
forms viction of Browder and remanded his case
contrary
review would
to the intent
to the district court for a new trial. Su
of the framers of our constitution when preme
Court
Rule 6
they
supreme
determined
court
“An appeal may be taken to this court from
state,
highest
was to be the
court of the
judgment
final
superior
entered
* * *
appellate
and was
final
vested with
action or proceeding,
* *
jurisdiction.
supreme
Unless the
court can
civil or criminal
requi
Here the
fully implement
appellate jurisdic-
its final
site finality
lacking
superior
for the
through
jurisdiction,
use of
review
granting
decision
Browder a new
difficult,
extremely
it will be
if not im-
in district court was neither a final
possible, for
proper
this court to exercise
judgment within the intendment of Rule 6
control over the
administration
nor
precedents
under this rule. See
justice, and the development of rules of law
Sedwick,
Patrick v.
(Alaska
in criminal trials.
can
One
envision
;
1963)
In re
Utility
Mountain View Public
erroneous rulings involving important ques-
District
(Alaska 1961).7
No.
20. note at 50.
934 Court, the held that criminal con- the courts and serious functioning of
effective
tempts
were to be treated
justice.21
like
administration
to the
purposes
right
jury
crimes for
the
running throughout
theme
consistent
A
trial
the
Due Process Clause
which sustained
decisions
Fourteenth Amendment
to the United
contempt
summarily for
of courts
States
and reversed Bloom’s
Constitution
necessary
preser
power
is that such
conviction.24
decorum, respect, au
dignity,
vation
Bloom,
Supreme
held that
Court
order,
effectiveness
thority,
nearly
“so
serious criminal
are
reflect
process. The cases
like
they
other serious crimes that
sub
possess
the courts must
belief
further
ject
provisions
trial
Con
discipline the contuma
means to
immediate
*
25
*
It was reasoned that
stitution
and ensure
to vindicate
in order
cious
contempt
every
criminal
a crime
A second
preservation
these values.22
respect
fundamental
because it “is a viola
support
rationale advanced
minor
law,
public
wrong
which is
summarily of direct
power
dispose
punishable by
imprisonment
fine or
“where the court
contempts is that
criminal
view,
Supreme
both.”26
In the
Court’s
the contemnor’s
personally
has
observed
cases in
the nature of criminal
misbehavior,
proof—
mode
the usual
provided
compelling
an even more
situation
dispensed
e.,
may supposedly
i.
trial —
than presented by
ordinary
criminal
23
with.”
providing
despotic traditional
unique, near
This
protection against arbitrary
exercise of
upon the
impose
sanctions
power,
penal
“[cjontemptuous
official
because
*
**
safe
the constitutional
contemnor without
conduct
often strikes at the most
ordinary
types
operative
guards
in other
judge’s
human
of a
qualities
vulnerable and
significantly circum
criminal offenses was
temperament.
when the
Even
194,
Illinois, 391
scribed
Bloom v.
U.S.
judge,
not a
direct insult
the court or
There
1477,
(1968).
522
88
20
S.Ct.
L.Ed.2d
judi
it frequently represents
rejection of
was sen
defendant
a contumacious state
authority,
cial
or an interference with the
for crim
years’ imprisonment
tenced to two
judicial process
of offi
or with the duties
27
White,
contempt.
speaking
inal
cers
of the court.”
concluded
Justice
194, 196,
Illinois,
21.
Bloom
391 U.S.
88
Moore,
23. 8A
Federal Practice
42.02
¶
J.
1477, 1479,
522,
L.Ed.2d
S.Ct.
20
525
[3],
(2d
1970).
42-10
Ed.
at
(1968). Although
Bloom,
24.
Simultaneous
decision in
roughly
century,
the 13th
dates
from
Due
Court
decided
really
requirement
trial was not
Amend-
Clause of
Fourteenth
Process
forcefully proposed until
Justice Black’s
guarantees
ment
States,
356
dissent
Green v. United
prosecutions
serious
state
165,
632,
672,
2
U.S.
78 S.Ct.
L.Ed.2d
Louisiana,
Duncan v.
courts.
391 U.S.
(1958).
693-711
1444,
145, 88
20 L.Ed.2d
491
S.Ct.
Ill,
2
Art.
sec.
of the United States
(1968).
that “[t]he
Constitution
except
crimes,
Illinois,
194, 198,
of all
cases of
25. Bloom v.
391 U.S.
88
* n
by jury
impeachment,
522,
shall
20
S.Ct.
L.Ed.2d
(1968).
states
“[i]n
The Sixth Amendment
prosecutions,
all
accused
201,
1481,
26.
Id. 391
at
U.S.
88 S.Ct. at
enjoy
speedy
shall
935 * * * prior that neither its decisions nor consid er. Perhaps to some extent we efficiency justi necessity erations of efficiency, sacrifice expedition, and econ jury a trial in cases of serious omy, fied denial of but the choice jury favor of contempts.28 criminal made, has been retained, in the Con stitution. seeWe no sound reason in according primacy to the individual’s logic policy apply not to it in the area right procedural protections over consid- contempt.29 necessity, efficiency, erations of and the respect judges Thus, Bloom, need to further Supreme Court ruled courts, stated: White that jury insofar as the trial is Justice concerned, contempts were to place We little credence in the notion treated like other except crimes that non- independence that judiciary of the contempts, crimes, serious petty like need hangs try contempts on the particular not be tried a jury.30 sig- Of summarily persuaded and are not to the at bar nificance is the expense possibly additional time and special rule, Court’s conclusion that a per- contempts in submitting involved serious mitting summary disposition for disorders juries seriously handicap will courtroom, was not needed.31 functioning effective We courts. punishment not deny
do
that serious
must
reasoning
highly
We find the
of Bloom
imposed
contempt,
sometimes be
but
persuasive
regard
conclusion
reject
pun
the contention that such
we
Process
of the United
Due
Clause
ishment must
imposed
without
requires
an in
States Constitution
* * *
jury
a
trial.
When
jury
dividual be
a
trial in
accorded
cases
issue,
serious
is at
considera
contempts.
serious criminal
On
efficiency
give way
hand,
tions of
must
interpretation
a matter of
ensuring
more fundamental interest of
Constitution,
of Alaska’s
we believe
pow
even-handed exercise of
requires rejection
decision in Baker
constitutionally
penalty
to be tried
with the
limited to that
peers gave
provided
petty
him an inestimable safe-
his
offenses.
corrupt
guard against
or overzealous
Barnett,
Goldberg
Justice
advanced
against
compliant,
prosecutor
time
thesis that criminal
for the first
judge.
biased, or eccentric
at
tried
were
without
198-199,
1477,
Id. 391 U.S. at
adoption
28.
88 S.Ct.
the federal
the time of the
they
Bloom’s heritage. at the core of our does the accused serious passively, by idly and need not stand right jury a trial.32 We have the contemnor waiting direction from for constitutional I, of the Alaska Consti section 11 Article Instead, highest court of land. we all crimi part that provides in tution “[i]n develop concurrently moving should be the accused shall have prosecutions, nal in expound principles embedded and trial, public by an right speedy and to a (footnotes law. omit- * 33 our constitutional * Roberts v. impartial jury ted). State, 340, (Alaska 1969), 342 458 P.2d adjudica decision-making in role presaged right jury-' trial Baker our pro involving tions Alaska’s constitutional ac in There the holding the case bar. recognizing explained.34 While visions was jury a had demanded and was denied cused obliged to national that we were enforce stemming from as upon charges required standards minimal constitutional municipality’s assault serted violation of Supreme inter by Court’s the United States that was ordinance. the defendant We held Amendment, pretations of the Fourteenth trial. constitu entitled to Alaska’s abdication of that it be an we said would provision relating tional responsibilities to look our constitutional interpreted to mean that was guidance.35 Court for only Supreme accused, upon prosecution 386, Fairbanks, City of P.2d Baker 471 v. demand, is entitled to a trial. We 1970), 401-402 contains further (Alaska prosecu category “criminal” defined subject decisional elaboration of our “including offense under Alaska’s Constitution. In obligations penalty for which be incarceration that we said: jail penal or reach institution.” enforce the minimum con- construction, While we must ing expressly we held imposed us values, stitutional standards contemporary rather than social inter- States Court’s the United determine categorizations, historical should Amendment, pretation of the Fourteenth prosecution pur criminal for Baker, free, duty, under a are and we are poses we trial.37 In rights Louisiana, develop additional constitutional give Duncan v. we declined to privileges our Alaska Consti- 20 L.Ed.2d rights if we find such fundamental reading determining tution (1968), a mechanical exception be the intention privileges to within scope petty offense spirit local constitutional lan- our guaranteed guage necessary and to for the kind We that this reasoned Due Clause. Process contempt statutes, Glasgow State, 32. the maxi- Under P.2d v. also 34. See 1970). (Alaska could suf- mum which Browder sentence receive, fer, fact did six imprisonment. State, months See AS 09.60.020 Roberts 35. further said We provides part person 1969), (Alaska which that: “[a] 468 P.2d guilty punishable expounding who is are not bound We fine of im- not more than $300 Declaration Constitution’s Alaska prisonment Rights more than six the United the decisions future, past Supreme Court, months.” States closely expound simi- identical or I, provisions Article 1 of the sec. Alaska Constitu the United States Con- lar tion further “all stitution. persons equal equal and entitled to Fairbanks, 36. Baker rights, opportunities, protection un (Alaska 1970). 386, 402 * I, der the law and Article Const, guarantees sec. 7 of the Alaska Id. at 396. person deprived shall “[n]o life, liberty, property, without due * * n ” process of law. hold direct criminal to determine We con- independent had *12 tempts must be treated like other crim as to serious so petty or are which offenses purposes for prosecution right inal to jury trial. require I, jury trial article section 11 of the on our belief is bottomed Baker Alaska Constitution. Direct criminal con- position a central jury right to holds tempts every meet facet of Baker's defini justice,38 of American the framework category prosecu tion of the of “criminal primacy which belief as to the our further policy tions” and underlying reasons right to a the accused’s must be accorded honoring guarantee Alaska’s constitutional conven- of against fair trial considerations right to a to trial. Under AS 09.50.020 In hold- expediency to the state.39 ience or in a contemnor be incarcerated ing prosecution criminal jail penal institution for six months.41 demand, to a accused, upon is entitled Thus, it is that a clear trial, we said in Baker that: prosecution proceeding is criminal within interpreting In Alaska Constitution I, article 11 of the Alaska Constitu section consequences consider the of we must case, tion. the instant believe that we person being denying jury trial to the expedi of considerations convenience and prosecuted. is of small moment to It ency to the state are out convincingly of incarcera- period citizen whether weighed right by the of an individual to * * *. long short Punish- only by be convicted means which ments inflicted at that level can be as hold, fundamentally fair. therefore We devastating and as to harsh the life Baker, I, that article accordance with citizen as those meted for more seri- out guar section of the Alaska Constitution ous and for felonious con- misdemeanors right antees the accused Why process duct. should the remedial contempt.42 for a direct criminal just be less one level than at another? plain only do we mean- Not think against attempts We should be alert requires rejection ing spirit of Baker government away fundamental whittle of of Bloom’s denial of rights grounds on expediency. of It is contempt, prevent our cases duty such non-serious consequences untoward for the citizen at analysis we are also convinced that but large.40 premises upon to sum- which by jury 38. “Trial is one of the oldest dis- justice under AS administration distinguishing cernible institutions Upon conviction, he could U.30.320. Anglo-American system jur- of our punishment of have received a maximum isprudence.” Id. at 396. $5,000 years’ imprison- fine and 5 ment. policy play 39. “Substantial reasons of must important part any disposition appeal at bar was on direct 42.The problem. naturally These divide at the time our de- to the major groups. themselves into two On handed down. cision in Baker was hand, the one we have considerations of State, n. 458 P.2d Fresneda expediency convenience or for the state 1969), (Alaska Court of legal imposes and its subdivisions. decision in Chimel v. States’ United machinery a certain burden California, government every to make offense * * which articu- 23 L.Ed.2d by jury. triable Balanced governing warrant- lated new standards against government the need to allow arrests, lawful searches incident less operate possible as unencumbered as pending applicable made to cases were is the of an accused to be con- court as of the date direct review victed, only all, if at means which aspect This of the Chimel decision. are fair.” Id: at 394. recently our decision in Fresneda was Id. at 401. State, followed in Robinson 41. Browder could 1971). also have been (Alaska, indicted felony obstructing offense of protections imprison procedural for criminal indi- efit of all
marily carefully exception years over the cates that no worked out system petty deemed fundamental our trial should made imprisonment potential justice. respect, sanction. alone where Genuine dignity can lend true long that it It was mentioned earlier has establishment, engendered, will thought been sum- authority, the fear of but unlimited necessary marily for for the by the firm administration the law preservation authority, dignity, *13 through procedures those institutionalized courts, engender and to effectiveness of over the which have been out worked respect judges The for courts.43 centuries.44 reasoning that major premise behind this is through goals fear goals only preservation be secured such can We think necessity by authority state. The punishment effectiveness of is premise process are for of this fear-based obtainable means other than retention eloquently power refuted White the use of the extraordinary to im- Justice Illinois, where he states: Bloom prison summarily contempt. Even for with- power, this out drastic our trial courts say cannot need to further We summarily impose up a fine of to for $100 is respect judges for and courts entitled types contempt, including “any various than the interest of to more consideration * * with the unlawful interference subjected to the individual to be seri- process proceedings or of the court.”45 punishment ous without the ben- (1) disorderly, contemptuous, or inso- 90(a) is reflective of this tradi- Civ.R. judge lent behavior holding toward the while approach. tional tending impair to its author writes : One authority interrupt toor the course of contempt power is understand- judicial proceeding; a trial or other through perspectives seen able when age inception, age (2) peace, of al- of its a breach boisterous divinely monarchies, legedly tending conduct, disturbance, ordained or violent king totally interrupt with ruled invested the course of trial or * * sovereign legal powers judicial proceeding all and account- *. other only circum- able to God. Under only contempts punishable These are king to the was a stances resistance by imprisonment, therefore under bring sin which would damnation. by jury, be for AS Baker must tried ** * Yet, straining some it takes provides: 09.50.020 contempt of reason to include Anglo- the best characteristics of within American, person guilty contempt is A who is by law. And freedom-conscious punishable assuming fine of more than even the value of this by imprisonment legal system ours, for not more $300 or as in a such device However, when the question than six months. it it another is still 10(3)- contempt procedural § is one mentioned ought in the to be exercised (12) chapter, or quantitative in an action extent manner or person deputy magistrate, before a it is now. punishable Contempt than Goldfarb, a fine of not more R. Power appears (1963). unless $100 remedy 11-12 party of a action 194, 208, Illinois, 44. Bloom ceeding prejudiced was defeated 20 L.Ed.2d 532- contempt, pen- in which case (1968). prescribed alty for con- shall 10(1) (2) tempts provided § Under described AS 12.80.010 it provisions chapter. “The the Code of Civil of this possible Thus, 09.50.010-09.50.060) (AS in the of minor it is case re- Procedure summarily impose contempt apply lating in criminal shall incar- under AS 09.50.020 fine because actions.” potential provisions for not a sanction ceration is Under the of AS 09.50.010 09.50.010(9), contempt 09.50.020, only following within AS and tempts con- contempt “any punishable by imprisonment: defines authority question cite for on the guilty has the of whether The court he was alleged e., to bind the contumacious conduct should (i. be affirmed.48 view, holding In our in harmony trial) contemnor over may order a contuma- the rationale of The court Baker and is reflective of alone. court- position be taken from the the central we believe the cious defendant to may, addi- Unruly spectators system holds of criminal room.46 citation, summary justice. ordered think fundamental tion to fine or We fairness requires retains the The court no one individual should be courtroom. fact, contempt in imprison permitted prosecutor, to act as authority to for civil trier of pow- judge proceeding. Each of these appropriate instances. same Neither degree pun- logic persuaded reason nor that this ers involves one or another has us ishment; summary power imprison in each the trial court acts anomalous summarily. It is that our trial thus clear is to be found “within inten impotent not be if tion and spirit courts rendered of our will local Rather, power summarily imprison language.” denied the we find that a contempts.47 most direct criminal in a direct criminal *14 “necessary is situation for the kind of Judge We therefore think that liberty civilized life and ordered is ruling Lewis’s that Browder was entitled heritage.” the core of our constitutional to a' trial under Alaska’s Constitution We therefore hold that Browder is entitled process complies. unlawful proceedings way, interference with the unless he In this it is keys jail of the court.” said that “he carries the in pocket” thus, purge his own he can — Allen, 337, 343, 46. In Illinois v. 397 U.S. himself. 1057, 1061, 353, 90 S.Ct. 25 L.Ed.2d 359 (1970), Supreme power Bloom, summarily the Court dealt with the 47. Under question obstreperous punish of the defendant. writing petty In Thus, for the court Mr. Justice limited to offenses. part: power contempts, in Black said serious direct proper punish summarily is essential to the adminis- is withheld in favor justice dignity, rights tration of criminal individual’s order, safeguards. and decorum be the hallmarks of All of which indicates the country. proceedings importance power all court in our diminished * * * punish summarily. No one formula main- taining appropriate unnecessary courtroom We find it to consider at- mosphere power will be best in all situations. detail the inherent of courts summarily Allen, punish contempt. the Court The held the de- contempt, power fendant could be cited for taken inherent ployed by has been em- doctrine justify- promises out of the courtroom until he courts as a device for contempt power properly, ing to conduct himself or as a last their exercise statutory gagged. he authori- resort could be bound and absence of other Mayberry contempts summarily. Pennsylvania, See also zation to 455, necessity, U.S. is the function of S.Ct. 27 L.Ed.2d Of 532, (1971). highest jurisdiction 538-540 In that case the court of the to de- power, part: and the Court said in fine the limits this by perimeters fully conclusion Our is that reason of of this bound- present the Due ed decision. Process Clause of the Four- teenth Amendment a defendant crimi- Mayberry concurring proceedings opinion nal should be his given public judge Pennsylvania, trial before a than the one L.Ed.2d reviled the contemnor. Burger part: A civil is said to be a willful said Chief Justice something contempt power, however, failure to do is of ordered (or doing utility dealing something in- with an forbid- limited court) cunning corrigible, psychopath, den or an for the benefit or ad- par- vantage frustrating party proceed- another to the bent on accused proc- ing undermining Typically before the court. ticular trial or jail justice. these, contemnor is ordered to until he For such com- esses of summary plies order, pay from the courtroom with the court’s removal or to aggrieved party— remedy. really fine —sometimes is the effective charter, it can be looks to one of whether When question on to a jury up a court in fact set it does seen contempt. We he committed appendix system. 8 of the I, Section section article that under hold further Alaska, Anchorage, city charter of the Browder Constitution Alaska’s part that: counsel assistance entitled to have charge.49a. in defense magistrate’s as established charter, date
on the effective Magistrate’s continue to be the shall SAT BREWER WHETHER JUDGE city. Court AIN STATE A STATE JUDGE THE neither the OF Browder further reasons that POSSESSED COURT any legislative CON- of Alaska nor PUNISH FOR constitution TO POWER prohibits enactment creation of courts TEMPT. by municipal corporation a home argues that cross-petition in his Browder rule concludes his ar- charter.50 Browder Brewer question Judge occasion gument by pointing to the fact that no ordi- judge not endowed city and was sat as a provision nor nance charter vested the con- contempt. Brow- cite for tempt power Anchorage city magis- by process of der reaches this conclusion trate’s court. reasoning: Anchorage is a following The state argues on the other hand X, Article Sec- city and under home rule correctly ruled that it is Constitution tion of the Alaska municipality home precluded rule powers shall have vided that “Cities establishing system own court virtue *15 by or charter.” conferred law functions provisions of IV, of Article Section 1 Ketchikan, 383 P.2d of Lien v. of the Alaska Constitution. is the state’s 1963), this court construed (Alaska IV, contention that Article Section vests to mean provision judicial power of the state in a unified city rule is concerned a home that where system.51 state court The state further charter, act, legislative argues city and that the charter of of An chorage powers does in fact grant to determine to in order looked municipal matt hearing to the court when power has been particular conferred upon pro the state relies ers.52 Here city. argument against is made. which this Const, I, 49. of the Alaska Art. sec. provision of our constitution The former prosecutions provides in all criminal that judicial power part of “The that states entitled to have the assist- the accused is supreme court, in a is vested the State ance for his defense. We do of counsel court, and the courts estab- in- in this case whether not decide by legislature.” X, sec. Article lished digent is entitled to have misdemeanant borough provides “A rule home political pro- the state or its subdivisions powers legislative city may all exercise vide All we need decide is counsel. prohibited charter.” law or entitled to have the assistance Browder is in the case at bar. of counsel assertion, support the state of this points 22.15.- to the fact that under AS 49a. We think it advisable that our Stand- 060(a) legislature district ing Advisory vested Committees on both Civil jurisdiction study over vio- courts with criminal and Rules Procedure Criminal of political Project of a sub- lation of ordinance the ABA on Minimum Standards Justice, Relating division. for Criminal Standards Judge’s Dealing to the Trial Role with argues city of state also The May 1971), Disruptions, (Tentative Draft up sepa- Anchorage in did fact not set proposing appropriate with a view toward system merely rate court but contracted concerning changes rule services. The state also state cedures. all advances further contention provisions IV, 50. The of with inherent art. sec. 1 and are clothed courts X, background summarily contempts. sec. 11 furnish the art. city appendix appendix to the charter of 8 of the of visions of section pro city Anchorage authorized Brewer to Anchorage Judge charter of punish contempts pursuant to state law.53 vides: court, on as established magistrate REQ- A WHETHER WILLFULNESS IS charter, shall of this the effective date OF DIRECT UISITE ELEMENT Magistrate’s Court continue to be CRIMINAL CONTEMPT. city. powers have all the It shall upon the court jurisdiction conferred AS 09.50.010sets certain acts forth such contempt. law and shall continue to exercise and omissions which constitute superseded powers jurisdiction until The statute that: by law. following acts or omissions in Chapter 1, 1.5(g) respect of the charter justice section to a or court “by Anchorage the term city proceedings defines are au- law, Con- “applicable federal thority law” to be of the court: applica- Alaska, the statutes of stitution and disorderly, contemptuous, or (I) inso- law, Since ble charter.” common judge lent behavior toward the while contempt powers confers 09.50.010 impair holding tending Alaska, the state that power, courts interrupt or to the course of a munici- contends, in the of the exists judicial proceeding.54 trial or other pal provisions of the division virtue appendix to the charter section 8 of portion This of Alaska’s laws city Anchorage. furnished the basis for Brewer’s Judge his cer-
adjudication contempt. For in deciding, that Assuming, without (7) rescuing person property correct, analysis is Browder’s custody of an of an virtue officer munici constitutionally permissible for a process court; order or system, we pality create its own court unlawfully (8) detaining a witness analysis of the party proceeding while agreement state’s to an action or returning going to, remaining at, or question hold that section *16 or the witness from the court where trial; party is for is state 53. Since the offense created govern regarding (9) any other interference unlawful law, should state law process proceedings with the or penalties. applicable court; duly (10) subpoena disobedience of a 54. Other acts or omissions which consti- served, refusing or an- contempt or be sworn to tute of court under AS 09.50.- witness; swer as a 010 are: juror (II) a (2) peace, when a summoned as a breach of boisterous serve, neglecting court, disturbance, tending or conduct, or to attend or violent party improperly conversing to interrupt with a oth- to the course of a trial or proceeding judicial proceeding; tried or to be an action er person (3) office, the court or with another misbehavior will- or other action, duty by neglect in relation to the merits of violation an or ful receiving peace a attorney, clerk, officer, or party a communication or other person respect person appointed perform to or or to elected immediately disclosing service; it to without a or ministerial court; process (4) deceit or abuse of the or court, (12)disobedience an inferior proceedings party court magistrate, referee, master, officer or proceeding; to an action or proc- judgment, order, or of the lawful judgment, (5) aof disobedience lawful proceeding higher court, or of a cess process order, court; or contrary proceeding in an or action proceeding falsely pretending (6) under au- or to act law after action thority process jurisdiction order or of an from the removed court; magistrate, or officer. inferior *** contempt,55Judge might states then Brewer order have been tificate sufficient. that: as to his queried the defendant actions I This is in the crimi- action nature his con- thereupon found actions action, and, nal to the authori- according authority, dig- temptuous of ties, placed on words the construction * * * tending disrupt nity, and decorum and used should favorable therein; proceedings defendant. ** defendant That found the con- I finding no that the There tempt of court AS 09.50.010 re- than remarks were made otherwise jail there- sentenced him to six months an inten- spectfully properly, or or with 09.50.020, having after under AS fore give tion to reflect offense rights the defendant his advised judge of the court. reading statutes into the record after both States, (9th F.2d Paul v. United explaining him.56 them to summary contempt 1929), Cir. involved a impression The issue is of first since one filed an lawyer of a who had conviction point.57 directly no Alaska state cases are contained affidavit the trial believed court Court,
Taylor District re- allegations. false The Ninth Circuit Browder, upon by (Alaska 1967), relied had finding his that Paul versed conviction contempt of involves an indirect court. e., that he had good acted faith (i. attorney Taylor who failed involved a false affi- entertained an intent make appear in for trial. the district court This States, 255 Tjosevig United davit). disregard or that “willful dis- held attorney and (9th both an 1919), F. 5 Cir. obedience orders of the aas his client were cited necessary court” was element of indirect change attempt of an to obtain result contempt. A number of territorial cases judge grounds on venue question uni- which have considered con- prejudiced. Ninth Circuit was hold, formily assumption, proceed on the defenses, was one of which sidered two necessary that intent or is a ele- willfulness indicate the intention did not facts contempt. In In re ment for direct criminal contempt. The of the accused commit Stabler, Alaska 190-191 defense, finding that the upheld this Attorney had Assistant United States good faith change was attempt venue honesty challenging made remarks attorney part of attempt on the Appeal integrity of court. from convic- apparent of his rights tect client. partly based Alaskan furnish these territorial cases ground that there been had no that willful- proposition precedent for Although because none had been intended. direct con- required ais element ness *17 appellate the that language court found the is view this territorial believe tempt. We by attorney questionable, used the it was and merits jurisprudence sound reflective of grounds reversed the on the of conviction on study of authorities the retention. Our of appearing intent from the record: lack a us left with this issue has sides of both efficacy of main- the as to conviction Had the that the firm order stated remarks requisite element aas taining willfulness were made an to cast re- with intention contempt. The soundness direct criminal integrity flections on the per- “A 90(a) provides: reads 55.Civ.R. AS 09.50.020 punish- contempt guilty contempt may punished is A who is be sum- son or marily by $300 judge more than if fine of the certifies that he saw able imprisonment than six not more constituting or heard the conduct contempt and that it was committed in months.” presence the actual adopted court. The contempt from were laws 57. Our contempt order of shall recite the Oregon. facts We the State laws of signed by judge shall be found, to, nor cited not been have entered of record. ques- Oregon precedent controlling on Compare 42(a). tion of willfulness. Fed.R.Crim.P. requirement affording is vividly such a demon- a jury In trial. fairness judiciary strated in case at state, bar. of this this court should precisely what, state if anything, is left of The the case bar reveals an record summary contempt power. ambiguous suscepti- setting factual is varying interpretations.58 ble of opinion such In The does deal ques- with we highly appropriate circumstances deem it tion of judge whether the has inherent judge, that the if the matter is tried to summarily direct con- jury, court without tempts. his certificate major I consider this a flaw required make finding a opinion. conduct rely only court’s It seems to constituting willful, if contempt statutory punish contempts. authority the matter is tried to proven a it jury If courts still have some inherent the accused was willfully contumacious.59 in this area then opinion should state its “willfully” We use here in the sense extent. act willfully if voluntarily done done If Baker is to literally be read as is indi- is,
intentionally, that with the intent
dis-
jury
cated
a
majority,
trial would be
obey
disregard
the law.
permissible in all
contempt
cases
judgment reversing
our contempt
because
statute
a
contempt
Browder’s
and remand-
conviction
imprisonment
maximum fine of
$300.00
ing the
matter
the district court
trial
for no more than six months.1
deter-
In
by jury is affirmed.
mining
trial,
under
jury
rationale,
possi-
Baker
we would look to the
BONEY, Chief
(concurring).
Justice
actually
ble sentence rather than the one
agreement
I am in
the result
with
imposed.
should
The court
state whether
majority
achieved
this case.
approach
follows the Baker
or not.
join in
opinion except
I
all
my opinion,
In
certainly
Browder was
portions
discussion on the
I,
entitled to a
article
sec-
in all direct
cases where
How-
Alaska Constitution.
imprisonment
possible punishment.
is a
ever,
approach
my
differs
my
opinion, majority
proceed-
has
majority in that I
look at the sentence
would
ed to
expand
actually imposed by
judge
deter-
the trial
giving
decision in
Baker v.
mining whether
was serious or
Fairbanks,
(Alaska
1970)
petty.
judge
believe the trial
has inherent
I
application
overbroad
it was
when
unnec-
contempts oc-
summarily punish
essary
in deciding
to do so
this case. Now
imposing
in his
curring
presence by
minimal
petty
contempts may
be tried before
sanctions. These
include
sanctions would
when a
even
sentence
little
example,
I do
jail
fine and
sentence. For
jail
day
imposed.
one
and a
not believe a fine of at least $100.00
majority opinion
clearly
does not
day jail
con-
five
sentence would make
question
answer the
judge
as to whether a
tempt
warranting trial
a serious one
might impose
a fine for direct
me
jury. There is no
at this time for
need
Certainly
without a
trial.
this court
precisely
petty
a line between
draw
should
question.
deal
this
opinion
Otherwise
serious
as this
not the
it must be assumed
case,
no
judge
has
the trial
court.
*18
to
direct
without
summarily imposed
jail sen-
a six-months
suggestion
58.
741,
Cir.),
There
(2nd
denied,
in the state’s brief
cert.
361
745
might
74,
827,
that Browder’s acts
have been
Thus, precedent marily historical bar attorney is not from courtroom alone exempt sufficient representation and to remove him from the guarantees. Moreover, of his client in the matter before the court. out, points White ques- “the ultimate Additional sanctions for violation o.f the Justice tion is not whether the traditional Canons of Professional Ethics of obvi- doctrine historically appropriateness. correct but ous whether the rule are never entitled Finally, extremely petty is a there class to a jury is a necessary accept- or an contempts (where punishment appro- is an able construction of the Constitution.”3 priate for isolated of court- fine) breaches Nevertheless, by this case or emphasize I wish also to room decorum not foreclosed the indispensable necessity City of Fairbanks.5 maintaining Baker v. 194, open 1477, 1. 391 U.S. 88 S.Ct. courses which are to trial 20 L.Ed. (1968). judges, 2d 522 and the American Bar Association Project on Standards for Criminal Jus- 2,
2. Id. 1481, at 198 n. 88 S.Ct. at Judge’s tice, Dealing with “The Role in L.Ed.2d at 527 n. 2. Disruption” Draft, May, (Tentative Trial 2, Id. at 200 n. 1971), suggested proper applica- S.Ct. has L.Ed.2d at suggestions 528 n. 2. to main- various proper tain decorum. States, Court of the United Allen, (Alaska 1970). Illinois v. 5.471 charted L.Ed.2d