MacDonald v. State, No. A-7231.

CourtCourt of Appeals of Alaska
Writing for the CourtCOATS, Chief.
Citation997 P.2d 1187
Decision Date03 March 2000
Docket NumberNo. A-7231.
PartiesJack A. MacDONALD, Sr., Appellant, v. STATE of Alaska, Appellee.

997 P.2d 1187

Jack A. MacDONALD, Sr., Appellant,
v.
STATE of Alaska, Appellee

No. A-7231.

Court of Appeals of Alaska.

March 3, 2000.


Benjamin I. Whipple, Palmer, for Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals,

997 P.2d 1188
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee

Before COATS, Chief Judge, MANNHEIMER and STEWART, Judges.

OPINION

COATS, Chief Judge.

This appeal involves the question of whether an individual can be prosecuted for the crime of "violating a domestic violence protective order," AS 11.56.740(a), when he has actual knowledge of the protective order, but has not been formally served with a written copy of the order. MacDonald was charged with five counts of violating a domestic violence protective order. He filed a motion in district court to dismiss the charges against him, claiming that the court lacked jurisdiction over him because he had not been formally served with a written copy of the order in accordance with Rule 4 of the Alaska Rules of Civil Procedure. After finding that MacDonald had actual knowledge of the domestic violence protective order at the time the violations occurred, the district court denied MacDonald's motion to dismiss. MacDonald subsequently pled no contest to, and was found guilty of, one count of violating a domestic violence protective order in each of two separate, but related cases.1 We affirm.

In a written order denying MacDonald's motion to dismiss, District Court Judge Suzanne H. Lombardi found that an ex parte domestic violence protective order was issued against MacDonald on June 29, 1998. The order stated he was not to contact Ruth Kern and that he was to stay away from her residence. After the attempts to serve a written copy of the order on MacDonald failed, the police called MacDonald and informed him of the order. In addition, both Kern and her friend advised MacDonald that there was an order not to contact Kern. MacDonald acknowledged to different persons that he knew the protective order had been issued against him and that he was avoiding service. After he had been notified of the order, MacDonald contacted Kern at her residence and at various other places.

MacDonald does not challenge Judge Lombardi's factual findings, nor does he argue that he lacked actual knowledge of the domestic violence protective order at issue.2 Instead, he contends that he was not bound by the protective order because, at the time the violations occurred, he had not been personally served with a written copy of the order pursuant to Alaska Civil Rule 4.3 MacDonald also argues that his conviction violates his due process rights and that AS 18.66.160(a) and (b), which governs service of domestic violence protective orders, is unconstitutionally vague. We disagree.

MacDonald's arguments regarding the applicability of Civil Rule 4 ignore the fact that he was subject to an ex parte domestic violence protective order.4 Alaska Civil Rule 65(d) specifically governs the scope of injunctions and restraining orders. It is a familiar rule of statutory construction that a specific provision governs, even though a general provision also applies.5 Therefore, Civil Rule 65(d), rather than Civil Rule 4, determines when MacDonald was bound by the domestic violence protective order. Courts have consistently held that in criminal contempt proceedings, formal or personal service of an injunction or restraining order is not required for the defendant to be bound by the order. Instead, actual notice of the

997 P.2d 1189
order is all that is required.6 Civil Rule 65(d) provides that
Every order granting an injunction and every restraining order ... is binding only upon parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise (emphasis added).

MacDonald argues that the actual notice provisions of Civil Rule 65(d) pertain only to those in "active concert" with a party to a restraining order. According to MacDonald, a party to a restraining order must be personally served with the order before he or she is bound by it. MacDonald's argument lacks merit. The actual notice requirements of the rule clearly apply to parties, as well as those in "active concert" with them.7 We therefore conclude that MacDonald was subject to prosecution for violating a domestic violence protective order, pursuant to AS 11.56.740(a), because it is uncontested that he had actual knowledge of the protective order issued against him.

MacDonald next argues that his conviction violates his constitutional right to due process. MacDonald claims that at the time of his arrest, the court lacked personal jurisdiction over him because he had not yet been served with a written copy of the protective order. MacDonald relies on cases which hold that due process requires that a written copy of a complaint must be served on a defendant in a civil action before a default judgment can be entered against the defendant.8 But, MacDonald was not a defendant in a civil action—he was subject to an ex parte domestic violence order issued under AS 18.66.110(a). This statutory provision is part of the legislation known as the Domestic Violence Prevention and Victim Protection Act of 1996.9

The purpose of this Act is self-evident—to...

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3 practice notes
  • Lily E. Hamilton On Behalf of Amber J. Lethem v. Lethem, No. 27580.
    • United States
    • Court of Appeals of Hawai'i
    • June 30, 2011
    ...504 (App.1988) (seven days). Other courts have upheld statutes providing for a hearing within twenty days. See, e.g., MacDonald v. State, 997 P.2d 1187, 1189 (Alaska App.2000). HRS § 586–5(b) thus falls within a widely accepted range. 17. The legislative history of section 586–4 confirms th......
  • Olson v. State, No. A-8379.
    • United States
    • Court of Appeals of Alaska
    • September 12, 2003
    ...and Judgment No. 4442 at 8, 2001 WL 1007464 at *4. 7. Id. at 5, 11-23, 2001 WL 1007464 at *3, 6. 8. 981 P.2d 1075 (Alaska App.1999). 9. 997 P.2d 1187 (Alaska 10. AS 18.66.100(b)-(c) authorize courts to prohibit the respondent indefinitely from committing or threatening to commit domestic vi......
  • Whalen v. Whalen, Supreme Court No. S-16200
    • United States
    • Supreme Court of Alaska (US)
    • August 10, 2018
    ...preponderance of the evidence that the respondent will not resume acts of domestic violence." Id. § 26.50.060(3).35 MacDonald v. State , 997 P.2d 1187, 1189 (Alaska App. 2000).36 See State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co. , 262 P.3d 593, 597......
3 cases
  • Lily E. Hamilton On Behalf of Amber J. Lethem v. Lethem, No. 27580.
    • United States
    • Court of Appeals of Hawai'i
    • June 30, 2011
    ...504 (App.1988) (seven days). Other courts have upheld statutes providing for a hearing within twenty days. See, e.g., MacDonald v. State, 997 P.2d 1187, 1189 (Alaska App.2000). HRS § 586–5(b) thus falls within a widely accepted range. 17. The legislative history of section 586–4 confirms th......
  • Olson v. State, No. A-8379.
    • United States
    • Court of Appeals of Alaska
    • September 12, 2003
    ...and Judgment No. 4442 at 8, 2001 WL 1007464 at *4. 7. Id. at 5, 11-23, 2001 WL 1007464 at *3, 6. 8. 981 P.2d 1075 (Alaska App.1999). 9. 997 P.2d 1187 (Alaska 10. AS 18.66.100(b)-(c) authorize courts to prohibit the respondent indefinitely from committing or threatening to commit domestic vi......
  • Whalen v. Whalen, Supreme Court No. S-16200
    • United States
    • Supreme Court of Alaska (US)
    • August 10, 2018
    ...preponderance of the evidence that the respondent will not resume acts of domestic violence." Id. § 26.50.060(3).35 MacDonald v. State , 997 P.2d 1187, 1189 (Alaska App. 2000).36 See State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co. , 262 P.3d 593, 597......

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