740 P.2d 437 (Alaska 1987), S-608, DeLisio v. Alaska Superior Court

Docket Nº:S-608.
Citation:740 P.2d 437
Opinion Judge:BURKE, Justice.
Party Name:Stephen S. DeLISIO, Appellant, v. ALASKA SUPERIOR COURT, Appellee.
Attorney:Kirsten Tinglum, Douglas B. Baily, Baily & Mason, Anchorage, for appellant. Susan D. Cox, Asst. Atty. Gen., Harold M. Brown, Atty. Gen., Juneau, for appellee.
Judge Panel:Before RABINOWITZ, C.J., and BURKE, COMPTON and MOORE, JJ. RABINOWITZ, Chief Justice, dissenting.
Case Date:July 21, 1987
Court:Supreme Court of Alaska

Page 437

740 P.2d 437 (Alaska 1987)

Stephen S. DeLISIO, Appellant,



No. S-608.

Supreme Court of Alaska

July 21, 1987

Page 438

Kirsten Tinglum, Douglas B. Baily, Baily & Mason, Anchorage, for appellant.

Susan D. Cox, Asst. Atty. Gen., Harold M. Brown, Atty. Gen., Juneau, for appellee.



BURKE, Justice.

In this appeal we have been called upon to reconsider the question of whether a private attorney may be compelled to represent an indigent criminal defendant without just compensation. We now conclude that Article I, section 18 of the Alaska Constitution requires a negative answer to this important question. While we strongly affirm the attorney's time-honored ethical obligation to provide cost-free representation to those in need and the corresponding obligation to accept court appointment on similar terms, Alaska's constitution will not permit the state to deny reasonable compensation to an attorney who is appointed to assist the state in discharging its constitutional burden.


Stephen DeLisio, an attorney in private practice in Anchorage, was in 1984 appointed by superior court judge Beverly Cutler to represent Stephen Ningeok, an indigent charged with sexual abuse of a minor. 1 DeLisio refused the appointment. At a non-jury hearing before the Honorable Mark C. Rowland, then Presiding Judge of the Third Judicial District, DeLisio's appointment was confirmed and he was ordered to commence representation by a specified date or be jailed for contempt until such time as he undertook the representation. We stayed the contempt citation pending DeLisio's motion for reconsideration and another attorney was appointed to represent Ningeok. On reconsideration, the contempt was reaffirmed. This appeal followed.


Initially, we reject DeLisio's contention that he is incompetent to represent a criminal defendant. At the contempt hearing before Judge Rowland, DeLisio stated that he had not handled a criminal case of any magnitude for at least fifteen years. He acknowledged, however, that he had served as a court-appointed criminal defense attorney from 1962 to 1963, had worked as a prosecutor for a year and a half, and had handled occasional criminal appointments between 1965 and 1967 or 1968. While criminal practice and procedure has undoubtedly changed since DeLisio was active in the criminal bar, the assertion that an attorney with DeLisio's trial experience is unable to provide adequate representation is at best disingenuous and need not be seriously considered. 2

DeLisio's assertion that he should have been afforded a jury trial on the contempt citation is similarly without merit.

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While it is true that a jury trial may be required when considering a criminal contempt, incarceration, per se, does not make the contempt criminal. See E.L.L. v. State, 572 P.2d 786, 789 (Alaska 1977). "[T]here is no right to a jury trial in a civil contempt proceeding when the sole purpose of the proceeding is to compel the contemnor to perform some act that he or she is capable of performing." Pharr v. Fairbanks North Star Borough, 638 P.2d 666, 668 (Alaska 1981). See also Gwynn v. Gwynn, 530 P.2d 1311 (Alaska 1975).

Here, the record amply demonstrates the nonpunitive, coercive nature of the sanction. In denying DeLisio's request for a jury trial Judge Rowland explained:

The Superior Court did not and does not now intend to punish Mr. DeLisio for his refusal to undertake the responsibilities of representation.... The responsibilities he was ordered to undertake have been assumed by another. If the Supreme Court dissolves its stay or upholds the Superior Court's order appointing Mr. DeLisio, Mr. DeLisio will be appointed to another case, and will be incarcerated only if he refuses to follow this Court's lawful order and only until he agrees to do so.

The Court's order of incarceration was purely coercive and in the nature of a civil contempt. No element of punishment was intended. Under the circumstances Mr. DeLisio is not entitled to a jury trial.

We agree. DeLisio was not wrongfully denied a jury trial.


DeLisio next argues that requiring an attorney to represent an indigent defendant without reasonable compensation is a taking of private property for a public use under the fifth and fourteenth amendments of the United States Constitution and article I, section 18 3 of the Alaska Constitution. We have rejected this argument on two prior occasions. In Jackson v. State, 413 P.2d 488, 490 (Alaska 1966), we held that

an attorney appointed to represent an indigent prisoner in a criminal matter has no constitutional right to receive compensation for his services. He has a right to compensation only to the extent that a statute or court rule may so provide.

In Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), we reaffirmed that ruling, stating that

an order requiring an attorney to represent a criminal defendant [does not] necessarily take that attorney's private property without just compensation. ... It may be that in some extreme cases an assignment would cripple an attorney's practice and thus rise to the level of a taking. But Wood has not shown that this is an extreme case.

Id. at 1229 (citations omitted). We are now persuaded that our prior rulings are in error.


Alaska's "takings clause" prohibits the taking of private property for a public purpose without just compensation. 4 The underlying intent of the clause is to ensure that individuals are not unfairly burdened by disproportionately bearing the cost of projects intended to benefit the public generally. State v. Hammer, 550 P.2d 820, 826 (Alaska 1976); see also L. Tribe, American Constitutional Law, § 9-4, at 463-65 (1978). 5 In order to effectively fulfill this purpose, a liberal construction of the clause in favor of the private property owner is

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required. E.g., Alsop v. State, 586 P.2d 1236, 1239 & n. 7 (Alaska 1978).

With these general principles in mind, an examination of the several justifications for denying compensation is in order. We note initially that the great weight of authority favors the denial of compensation. See e.g., Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir.1982), and cases cited therein.

First, it is averred that the appropriation of an attorney's service can raise no issue under the takings clause because the practice of law is a privilege conferred by the state rather than a protected property interest. See, e.g., Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d 325, 330-31 (1943). Assuming, arguendo, that we are here concerned with appropriation of "the practice of law" as opposed to appropriation of an individual's labor, the argument nonetheless is unconvining. In Frontier Saloon v. Alcoholic Beverage Control Board, 524 P.2d 657 (Alaska 1974), we noted that

It has long been recognized that an interest in a lawful business is a species of property entitled to the protection of due process. This interest may not be viewed as merely a privilege subject to withdrawal or denial at the whim of the state. Neither may this interest be dismissed as de minimis. A license to engage in a business enterprise is of considerable value to one who holds it.

Id. at 659-60 (citations & footnotes omitted). We have recognized that membership in the state bar entitling one to engage in the practice of law deserves the same protection. In re Butterfield, 581 P.2d 1109, 1110-12 (Alaska 1978); Application of Peterson, 459 P.2d 703, 710 (Alaska 1969); In re Mackay, 416 P.2d 823, 850 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S.Ct. 1907, 16 L.Ed.2d 1016 (1966). Thus, a license to practice law is not a mere privilege, granted or revoked at the whim of the state, but is a substantial interest protected by the due process clause of the Alaska Constitution. 6

Notwithstanding the above, however, we reject the basic premise that it is the practice of law which is at issue. No one has argued that DeLisio would have had taken from him his ability to practice law. Rather, DeLisio would have had taken from him his labor. Thus, whether a license to practice law is a "mere privilege" or a "substantial property right" is irrelevant to the issue at hand.

A related argument is that personal services, such as those provided by attorneys, are not "property" within the meaning of the takings clause. See generally, D. Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U.L.Rev. 735, 771-77 (1980). Whatever the merit of this argument under the federal Constitution, we reject it as it applies to the Alaska Constitution. We see no language in our takings clause to indicate that services should be excluded from the section's protections, and are unaware of any constitutional convention history indicating such exclusive intent. Consequently, we perceive no reasoned basis for excluding such services.

Indeed, excluding personal services from the clause's provisions is manifestly unreasonable. It has long been recognized that "[l]abor is property. The laborer ha[s] the same right to sell his labor, and to contract with reference thereto, as any other property owner." Coffeyville Vitrified Brick & Tile v. Perry, 69 Kan. 297, 76 P. 848, 850 (1904). This axiom applies with no less force to an attorney's services than it does to any other labor. As early as 1854 the Supreme Court of Indiana stated that

To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic.

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Webb v. Baird, 6 Ind. 13,...

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