State v. Browder, 1323

• Decision Date: 01 July 1971
• Docket Number: No. 1323,1323
• Citation: 486 P.2d 925
• Parties: STATE of Alaska, Petitioner, v. Richard F. BROWDER, Respondent-Cross-Petitioner.
• Court: Alaska Supreme Court

Page 925

486 P.2d 925

STATE of Alaska, Petitioner, v. Richard F. BROWDER, Respondent-Cross-Petitioner.

No. 1323.

Supreme Court of Alaska.

July 1, 1971.

Robert L. Eastaugh, Asst. Dist. Atty., Harold W. Tobey, Dist. Atty., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for petitioner.

Robert H. Wagstaff, Boyko & Walton, Anchorage, for respondent and cross-petitioner.

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ.

OPINION

RABINOWITZ, Justice.

This case presents important questions concerning the constitutional rights of one accused of direct criminal contempt and the extent of our review jurisdiction in the procedural context of the case at bar.

FACTUAL AND PROCEDURAL BACKGROUND

On March 23, 1970, at approximately 3 p. m., Judge Joseph Brewer, while presiding over municipal arraignments in the Municipal Davision of the District Court, requested the bailiff to bring Richard F. Browder into the courtroom. After Browder was brought in the courtroom, he was asked his name, whether he was the person who had entered the courtroom earlier with a shotgun, and if he had engaged in such conduct what explanation, if any, he had to offer. Browder explained that he did not wish to leave his friend's shotgun in an unlocked vehicle; that he therefore unloaded the shotgun and broke it open; and that he then entered the courtroom to ascertain how long the owner of the weapon would have to remain in the courtroom. At this point in the proceeding, Judge Brewer informed Browder that his conduct could be characterized as a direct contempt of court punishable by a fine of up to $300 or 6 months' imprisonment. After reading to Browder Alaska's statutory provisions governing contempt, Judge Brewer told Browder

that coming into the court * * * carying a shotgun * * * even though it were broken at the breach and carrying the shells in your pocket was, sir, direct contempt of this court and is contumacious and reflects upon the authority of this court and impairs its dignity and authority and I will not have it. Understand that? Furthermore a charge of contempt of court is not one to which you can plead guilty or not guilty. * * *

Browder was then sentenced to six months in the Anchorage City Jail, and remanded to the custody of the bailiff.

Thereafter, on March 31, 1970, with the assistance of counsel, Browder filed, in the superior court, a complaint for a writ of habeas corpus. On April 14, 1970, Browder additionally filed a notice of appeal from his contempt conviction and from the sentence which was imposed. In his appeal and habeas corpus action, Browder asserted that Judge Brewer, sitting as a city magistrate, lacked authority to punish for contempt since neither the charger nor the ordinances of the city of Anchorage granted him this power; that the sentence imposed exceeded the maximum permissible sentence, $300 fine of 30 days incarceration, for all crimes under the charter of the city of Anchorage; that the court's judgment was defective in that it did not contain a sufficient factual recitation showing a 'legal contempt of court as is required by Civil Rule 90(a)'; ¹ that he was denied his right to a jury trial; and that he was not guilty of contempt as a matter of law.

The appeal and habeas corpus matters were thereafter consolidated for hearing before the superior court. In connection with the superior court proceedings, Richard Browder filed an affidavit in which he related his version of the events which culminated in his contempt conviction. According to Browder, on March 23, 1970, at approximately 1:30 p. m. he accompanied two companions to the State Court Building at Anchorage, Alaska; '(t)hat upon entering the State Court Building an Alaska State Trooper directed * * * (his) companion to unload and break his shotgun. * * *' Thereafter, his companion complied with the request and they were 'permitted to enter, attend, and depart the District Court that was then in session, * * * the * * * shotgun remaining at all times in the possession of (Browder's) companion.' When they left, Browder and his companions drove to the Municipal Division of the District Court. Browder states that subsequent to their arrival at the Municipal Division Court building and after some delay,

he went into court * * * (and) took the above described shotgun with him, broken at the breach and unloaded, because he did not want to leave the shotgun in the truck as the truck could not be locked and he was afraid that the shotgun might be stolen,

That he entered the courtroom and went to his two companions who were sitting in approximately the third row of spectators in the court, and gave the keys to the truck to its actual owner and asked his companions how long they would be in court,

That as soon as he had completed this inquiry and turned to leave the court bailiff approached him and requested that he remove himself from the court,

That at no time while in the court did he make any loud noise, disturbance, gestures, or in any way conduct himself other than in a calm, reasonable and normal manner as any other court spectator would * * *.

According to Browder, he then left the courtroom. Within 15 minutes, the bailiff found Browder and requested him to return to the courtroom. Upon his return, Browder was sentenced to six months' imprisonment for contempt of court.

As part of its opposition in superior court, the State of Alaska filed Judge Brewer's affidavit. In this affidavit, Judge Brewer states that:

At sometime between 2 p. m. and 2:20 p. m., while occupied with criminal arraignments, he noticed the appearance in court of an individual carrying a shotgun, which individual was dressed in denim overalls and a leather vest, the breast pocket of which gave him the impression it contained shells for the shotgun, with 'Brothers' lettered across the back * * *.

Judge Brewer further says that he found Browder's appearance with the shotgun 'shocking' and, because he believed the 'shotgun carrier might very well start shooting up the courtroom,' feared for the safety of the persons in the courtroom as well as for his own personal safety. It appeared to Judge Brewer that Browder, when approached by the bailiff, 'showed some opposition to leaving although he made no threatening gestures with the shotgun * * *.' ² The judge estimated the entire episode lasted approximately one and one-half minutes. According to Judge Brewer, 'there was a disruption of the court's business and an interruption in the continuity of the arraignments' because of the unusualness of Browder's appearance and actions.

After hearing argument from counsel, Superior Court Judge Eben H. Lewis ruled that Judge Brewer acted correctly in ordering Browder's removal from the courtroom because Judge Brewer 'had a reasonable and legitimate concern for the safety of himself and others present in that courtroom'; that Judge Brewer, as a district judge, possessed contempt powers; and that under Alaska's statutes pertaining to contempt, 'the conduct of an individual tending to disrupt the proceedings or to impair the authority of the court must be of a whillful nature.' Judge Lewis also concluded, guided by the rationale of Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970), that Browder was entitled to a jury trial on the issue of whether he willfully intended to disrupt the proceedings or impair the authority of the district court. Apparently of controlling significance to Judge Lewis in his resolution of the jury trial issue was the fact that in Baker this court declared that under Alaska's constitution an accused upon demand is entitled to a jury trial in any criminal prosecution, whether under state law or for violation of a city ordinance. Baker further defined the category of 'criminal' prosecutions as 'including any offense a direct penalty for which may be incarceration in a jail or penal institution.' ³ By way of dictum, Judge Lewis made the observation that 'it goes without saying that with that right of jury trial of course there was a right to counsel.' ⁴ The case was then remanded to the district court for trial in accordance with Judge Lewis' decision.

The State of Alaska now petitions this court seeking review of Judge Lewis' rulings that Browder was entitled to counsel and a jury trial on the issue of whether he willfully intended to disrupt the proceedings or impair the authority of the district court. Browder has also cross-petitioned seeking review of Judge Lewis' determinations that Judge Brewer possessed the authority to punish contumacious conduct; that Judge Brewer was not limited by the maximum sentence permitted under the city of Anchorage's charter; that the order of contempt was not void on its face; and Judge Lewis' failure to hold that he was not guilty of contempt as a matter of law.

JURISDICTION IN GENERAL

Article IV, section 1 of the Alaska Constitution provides in part that 'The jurisdiction of courts shall be prescribed by law.'

Pursuant to this grant of power the legislature in AS 22.05.010 delineated the jurisdiction of the Supreme Court of Alaska in the following manner:

The supreme court has final appellate jurisdiction in all actions and proceedings. The supreme court may issue injunctions, writs of review, mandamus, certiorari, prohibition, habeas corpus, and all other writs necessary or proper to the complete exercise of its jurisdiction. * * * An appeal to the supreme court is a matter of right, except that the state shall have no right of appeal in criminal cases, except to test the sufficiency of the indictment or information and (to hear appeals on the grounds that the sentence is excessive or too lenient).

In sketching the constitutional, statutory, and regulatory scheme whereby appellate review of lower court decisions may be had, article IV, section 15 of the Alaska Constitution is also relevant. This section provides in part that:

The supreme court shall make and promulgate rules governing the...