State v. Browder

BONEY, Chief Justice

(concurring).

I am in agreement with the result achieved by the majority in this case. I join in all of the opinion except for portions of the discussion on the right to jury trial in all direct contempt cases where imprisonment is a possible punishment.

In my opinion, the majority has proceeded to expand the right of a jury trial by giving our decision in Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) an overbroad application when it was unnecessary to do so in deciding this case. Now petty direct contempts may be tried before a jury even when a sentence as little as one day in jail is imposed.

The majority opinion does not clearly answer the question as to whether a judge might impose a fine for direct contempt without a jury trial. Certainly this court should deal with this question. Otherwise it must be assumed that a court has no power to punish direct contempt without affording a jury trial. In fairness to the judiciary of this state, this court should state precisely what, if anything, is left of the summary contempt power.

The opinion does not deal with the question of whether the judge has inherent power to summarily punish direct con-tempts. I consider this a major flaw in the court’s opinion. It seems to rely only on statutory authority to punish contempts. If courts still have some inherent authority in this area then the opinion should state its extent.

If Baker is to be read literally as is indicated by the majority, a jury trial would be permissible in all criminal contempt cases because our contempt statute provides a maximum fine of $300.00 or imprisonment for no more than six months. 1 In determining the right to jury trial, under the Baker rationale, we would look to the possible sentence rather than the one actually imposed. The court should state whether it follows the Baker approach or not.

In my opinion, Browder was certainly entitled to a jury trial under article I, section 11 of the Alaska Constitution. However, my approach differs from that of the majority in that I would look at the sentence actually imposed by the trial judge in determining whether the contempt was serious or petty. I believe the trial judge has inherent power to summarily punish contempts occurring in his presence by imposing minimal sanctions. These sanctions would include a fine and a jail sentence. For example, I do not believe a fine of at least $100.00 and a five day jail sentence would make a contempt a serious one warranting trial by jury. There is no need at this time for me to precisely draw a line between petty and serious contempts as this is not the opinion of this court. In this case, the trial judge summarily imposed a six-months jail sen *944 tence. This indicates the seriousness of the alleged contempt. On balance, the court’s summary power must give way to Brow-der’s rights to the procedural safeguards which are incident to any conventional criminal proceeding of a serious nature.

The United States Supreme Court in Bloom v. Illinois, 391 U.S. 194 , 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968) said that criminal contempt is a, petty offense unless severe punishment makes it a serious one. In Bloom , the court held that the Sixth Amendment guaranteed a jury trial in serious contempts prosecuted in state courts for the reason that there were no substantial differences between serious contempts and serious crimes. The federal definition of a serious crime in contempt cases is one in which a sentence of more than six months is imposed. 2 Needless to say, we should not blindly adopt the federal definition in interpreting our constitution. However, we should draw a line which is reasonable and which is in accord with our constitutional history.

It is my view that the majority has mechanically applied the Baker tests of determining what is a serious crime to criminal contempt cases. I believe such an approach is somewhat erroneous in that it ignores the historical basis of the Baker decision and the evil it was designed to correct. Baker guaranteed jury trials for the first time since statehood for prosecutions of serious offenses prosecuted under municipal ordinances. The court was influenced in its decision by the territorial practice of granting jury trials in all criminal cases. 3 Significantly, though, it was never the practice to grant jury trials in direct contempt proceedings in territorial days. The question of granting jury trials in direct contempt proceedings was not even considered by the court in Baker . A wise rule in a conventional criminal case may become an absurdity when applied to a summary contempt proceeding. The differences between the two types of proceedings are readily apparent. These differences are attested to by the historical separation of the two categories of offense. Convictions of a petty criminal contempt differ significantly from convictions of a conventional crime in terms of the opprobrium which will be attached thereto by society. A conventional crime is an offense against the state and its people, while a criminal contempt is more narrowly an offense against the dignity of the court. In my view, the differences between these two categories of offense may not be wholly disregarded. I am not as confident as my brothers are that the courts still have adequate means available to maintain order and decorum in the courtroom. No longer will the courts of this state be able to summarily punish contemptuous conduct in an effort to maintain orderly judicial processes. Hopefully, the rule announced by the majority today will not render the courts impotent to deal with those who will disrupt court proceedings.

There is no reason why the courts of this state should not be able to punish petty contempt summarily. The Constitution of the United States does not prohibit such action. In my opinion, the broad interpretation given to the Alaska Constitution’s jury trial provision is unwarranted and was not commanded by the Baker decision. Obviously, the majority is fearful of the arbitrary abuse of judicial power. Needless to say, *945 such abuse can be dealt with in other ways. As an example, this court in the exercise of its rule making power could provide for procedures which could insure greater protection for those cited for contempt. This would be preferable to making an unwise constitutional decision. In this case, the cure may be worse than the disease.

. AS 09.50.020.

. Cheff v. Schnackenberg, 384 U.S. 373 , 86 S.Ct. 1523 , 16 L.Ed.2d 629 (1966).

. In Baker v. City of Fairbanks, 471 P. 2d 386, 399-401 (1970), we stated:

The framers of our constitution had a background of actual experience in which the jury trial had been available in criminal cases on a broad basis. First, a broad right to jury trial obtained in prosecutions for any offense under territorial law. Second, some municipalities had provided for jury trial, on demand; and while other mu-nieipalities bad not so provided, the question of the entitlement to jury trial had never been tested through an appellate proceeding during territorial times. * * *

If, historically, jury trial had always been available on a broad basis in Alaska, it is only reasonable to conclude that the framers thought they were continuing an existing practice. This may account for the lack of discussion on the convention floor about the petty offense exception. (Footnotes omitted.)