Opinion
Court of Appeals No. A-10088.
December 10, 2008.
Appeal from the District Court, Third Judicial District, Anchorage, Ronald Wielkopolski and Suzanne Cole, Magistrates, Trial Court No. 3AN-07-13698 MO.
Charles Lee Davis, pro se, Anchorage, for the Appellant.
Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Charles Lee Davis was ticketed for failure to stop at a red light and for failure to p rovide proof of in surance. His trial was set for October 19, 2007. W hen D avis failed to appear, the district court entered default convictions. Davis later requested that the district court vacate this judgment. The request was denied and Davis appealed. For the reasons explained here, we return the case to the district court to determine whether Davis's failure to appear was excusable, and, if so, whether he can assert a meritorious defense and is therefore entitled to have his default conviction set aside.
AMC 9.14.040 C.1.
AS 28.22.019.
Facts and proceedings
On May 18, 2007, Anchorage Police Officer Charles K. Reynolds saw a large semi truck pulling a trailer fail to stop at a red light. Reynolds was driving a police vehicle in the traffic lane alongside the truck and was approximately fifteen to twenty feet behind the truck's front bumper. He saw that the truck was approximately fifteen feet from the intersection when the light turned red, and he watched as the truck continued through the intersection. Reynolds stopped the truck and contacted the driver, Davis. Ultimately, Reynolds issued Davis traffic citations for failure to stop for a red light and for failure to provide proof of insurance.
Davis chose to dispute the violations in court. On September 7, 2007, notice was sent to Davis informing him that his trial was scheduled for October 19 at 3:30 p.m. On October 13, Davis filed a motion to reschedule the trial, stating that he had "a major conflict with a mandatory contract obligation and [would] be out of the Anchorage Area at the time scheduled on October 19, 2007."
Magistrate Ronald Wielkopolski denied the motion on October 15. But he wrote a note that the motion was "subject to reconsideration" and that Davis "must serve this [motion] on [the] city prosecutor's office." The record also has a notation that a court employee called Davis on October 15, and left a voice mail message that the request for a continuance had been denied.
In response, on October 17, Davis filed a motion to reconsider "the verbal message" left on his voice mail. Magistrate Wielkopolski denied this motion, "pending service [of the motion] on the city prosecutor's office for response." But Magistrate Wielkopolski also noted that Davis "may participate [at his trial] by telephone if he elects not to serve [the motion] on [the] city prosecutor for response." Another notation in the court file indicates that on October 19, at 8:50 a.m., a voice mail message was left on Davis's phone, telling him that his motion was denied pending service of the document on the city prosecutor.
Although this notation does not state that Davis was told in the voice mail that he could participate by telephone if he chose not to serve the Municipality, the file has three other hand-written notations regarding events that occurred on October 19. These notes were apparently written by trial court personnel.
One notation indicated that Davis had called to let the court know that he would be in Talkeetna plowing at the time set for trial and he would attempt to call in. This notation also indicates that he was not sure that his cell phone would have service in Talkeetna, and that he had served the city prosecutor with his motion to reconsider. Another notation indicated that at 2:40 p.m. the "[Municipality of Anchorage] advised [the court that it has] no response to [Davis's] documents." The third notation indicates that Davis had tried to call in, but that the calls had "been dropped at least 4 or 5 times," and that, because Davis could not get through, a default judgment was entered.
The log notes show that trial started at 3:43 p.m. on October 19, and that Davis was not present. Magistrate Suzanne Cole presided. She noted that Davis's motion to delay the trial had been denied, but she acknowledged that Magistrate Wielkopolski's orders were confusing. She was concerned that Davis might not have realized that even if he served his motion for reconsideration on the Municipality, he would still have to appear, either by telephone or in person, because no delay had been granted. Despite this misgiving, Magistrate Cole decided to continue with the proceedings, noting that if she entered a default, she would consider setting it aside "depending on what [Davis] files next."
She then had Officer Reynolds explain the probable cause for the citations. When Reynolds said he had not been sworn, Magistrate Cole said that she did not require that. Reynolds then, without being sworn, explained the reason he had stopped Davis, and the reasons he had issued the citations. After hearing from Reynolds, Magistrate Cole entered the default convictions. It is not clear whether Magistrate Cole knew that Davis had tried to call in.
Ten days later, Davis moved to set aside the default convictions. To do so, he used a form provided by the court system: "TR-420 (9/06)." This form provides defendants with two alternatives for requesting that the default judgment be vacated. The first allows them to claim that the default should be set aside because their "right to due process was violated in the earlier proceeding because [they] did not get fair notice" of the trial date, did not get a "fair chance to answer," or both. There is blank space on the form for further explanation. The second option provides: "I have a good reason to set aside the judgment and I have a meritorious defense to present if my case is reopened. Explain:". The form provides four blank lines for the explanation.
To explain his claim that he had not received fair notice, Davis wrote: "Message left on answering machine by Clerk the morning of trial, I was out of town."
In the space provided to explain that he had good reason to set aside the judgment and that he had a meritorious defense, he wrote: "I had complied with the Judge's orders. See attach[ed] copy of order."
The municipal prosecutor opposed the request. Magistrate Wielkopolski then, without explanation, denied the request. Davis has appealed the default judgment entered for the charge of failure to stop at a red light.
District Court Criminal Rule 8 and default convictions
District Court Criminal Rule 8 governs the procedures for minor traffic offenses. Under Rule 8(d)(6), the district court may enter a default conviction against a defendant who, like Davis, requests a trial and then, despite having proper notice, fails to appear for trial. A defendant may, under Rule 8(i), seek relief from a judgment entered under Rule 8(d)(6). To justify this relief, a defendant has to allege that the default was entered in violation of due process, or that there was "good cause" to vacate the judgments. To show good cause, a defendant has to allege a meritorious defense to the charges and a reason, such as excusable neglect, for the failure to appear. We note that it is possible that Davis believed that the form was asking him to assert a meritorious defense to missing his court date, as opposed to his defense to the citations he received.
See District Court Criminal Rule 8(b)(3).
This rule reads in pertinent part: "The court may . . . enter a judgment of conviction against a person who requests a trial [of a minor offense] if the person has been sent notice of a trial date and then fails to appear."
See Zok v. Anchorage, 41 P.3d 154, 156 (Alaska App. 2001); see also Pew v. Foster, 660 P.2d 447, 448-49 (Alaska 1983).
Id. at 155.
See id. at 155-56; see also Case v. Anchorage, 128 P.3d 193, 195 (Alaska App. 2006).
We acknowledge that the information Davis provided to the district court normally would not justify setting aside the judgments because even if Davis's failure to appear was excusable, he did not allege a meritorious defense. But the record shows that Magistrate Cole had some reservations regarding the possibility that Davis was confused by the pretrial rulings in the case. The record also shows that Davis made an effort to appear telephonically on the date set for trial. As we have already described, the notations indicate that on October 19, Davis tried to call the court "4 or 5 times" but that the calls had been "dropped" — that is, Davis used a cell phone and his calls were apparently involuntarily disconnected because of technical problems with the signal provider. There is no indication that Magistrate Cole was aware Davis was attempting to appear telephonically but was unable to maintain a connection.
See Case, 128 P.3d at 195.
Given these circumstances, it appears possible that Davis did not willfully fail to appear for his trial. We therefore conclude that, in the interests of justice, we must return this case to the district court to determine whether Davis willfully failed to appear. If the district court finds that Davis's failure to appear was excusable, and that he has asserted a meritorious defense, then the district court shall set the default judgment aside.
Davis's other issues
Davis also contends that Officer Reynolds acted outside his authority when he represented the Municipality at the trial. But District Court Criminal Rule 8(k) allows this procedure, and nothing in the record indicates that Officer Reynolds exceeded the limitations established in that rule.
District Court Criminal Rule 8(k) provides:
A municipal corporation of the State of Alaska may be represented by an employee of the state, the municipality, or other political subdivision of the state for the prosecution of minor offenses under this rule, AS 22.20.040 notwithstanding. However, the representative is limited to giving testimony and may not examine witnesses, make opening and closing arguments, or otherwise act as an attorney. The representative need not be employed by the same governing entity represented, but must be authorized by the entity to represent it.
Davis also takes issue with the fact that Magistrate Cole did not require Officer Reynolds to be sworn before he provided a statement establishing the probable cause for issuing Davis the two citations. It is not clear to us whether Magistrate Cole concluded that she required additional information before entering the default convictions; Rule 8 apparently authorizes a magistrate to enter a default conviction based solely on the information provided by the citation. But if supporting testimony was required, we note that Alaska Rule of Evidence 603 requires that all testimony be given under oath. Consequently, it appears that even though police officers are "representing" a government agency in these proceedings, when they are called upon to provide evidence in the form of testimony, Evidence Rule 603 requires that they be sworn.
In addition, Davis — relying on federal law — claims that the magistrates lacked the authority to preside over his trial. We find this claim meritless. The Alaska Legislature has granted magistrates the authority to "hear, try, and enter judgments in all cases involving minor offenses and violations of ordinances of political subdivisions."
AS 22.15.120(a)(7). See also AS 22.15.010 (establishing district courts) and Alaska Const., art. IV, § 1 ("judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature").
Davis also raises various constitutional arguments, but because of our resolution of this appeal, we do not reach them. To the extent Davis may be attempting to raise other claims, we conclude that these claims are inadequately briefed and are therefore waived. Conclusion
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (issues that are only cursorily briefed are deemed abandoned); see also A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) (waiving for inadequate briefing majority of fifty-six arguments raised by pro se appellant).
The case is REMANDED to the district court for consideration of whether the default judgment should be set aside. We do not retain jurisdiction.