author: FABE, Chief Justice.

text:
    Mindy Lynn OSMAR, Appellant, v. Gary Lee MAHAN, Appellee.
    No. S-10299.
    Supreme Court of Alaska.
    Aug. 16, 2002.
    Max F. Gruenberg, Jr. and Jennifer L. Holland, Gruenberg, Clover & Holland, Anchorage, for Appellant.
    No appearance by Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

When the trial court calculated Mindy Lynn Osmar's child support obligation for her son, Steele, the court included in Mindy's income the Social Security benefits that Ashley, Mindy's child from a previous marriage, receives because of the death of Ashley's father. Yet, federal law restricts Mindy's use of these benefits to Ashley's care and maintenance; they are not available to support Steele. We therefore conclude that the trial court erred by including the payments in Mindy's income for purposes of determining child support under Alaska Civil Rule 90.3.

II. FACTS AND PROCEEDINGS

Mindy Lynn Osmar and Chris Osmar married and had one child, Ashley Osmar. After the couple's divorce, Chris became disabled and died. Mindy receives Social Security children's insurance benefits (CIB) ranging from $922 to $954 per month on Ashley's behalf because of Chris's disability and death. The checks are from the United States Treasury and are made out to "Mindy Osmar for Ashley M. Osmar" and list Ashley's Social Security number.

Mindy and Gary Lee Mahan were married in April 1997 and separated in January 2000. They have one son together, Steele Lee Ma-han, born July 3, 1998. Mindy filed for divorcee on March 8, 2000 and both Mindy and Gary sought legal. and physical custody of Steele and child support from each other. Under the terms of a Domestic Violence Protective Order, Mindy was awarded temporary custody of Steele. However, because of Mindy's work schedule, Mindy has Steele from Sunday at 6:00 p.m. until Tuesday at 5:30 pm. and Wednesdays, Thursdays, and Fridays from 9:00 a.m. to 5:80 p.m.

In its order on interim child support of May 17, 2000, the superior court concluded that although Steele spends the night with Mindy less than thirty percent of the time, a departure from the overnight accounting method was warranted because Steele spends a majority of his waking hours with Mindy. Accordingly, the superior court calculated child support based on a 50/50 shared custody formula and ordered Mindy to pay Gary $26.61 per month for child support. The superior court included in Mindy's income the CIB payments that Mindy receives on Ashley's behalf.

Mindy moved for reconsideration, arguing that "[flor child support purposes, Ashley is irrelevant. She is not a child of the marriage and her income and expenses are irrelevant." In ruling on the motion for reconsideration, the superior court interpreted Alaska Civil Rule 90.3 as requiring inclusion of the Social Security benefits in Mindy's income. However, it reduced the order against Mindy from $26.61 per month to $0, concluding that good cause existed under Rule 90.3(c)(1) to vary the award.

After a two-day trial in January 2001, the trial court again rejected Mindy's argument that the Social Security benefits should not be included in her income for Rule 90.38 purposes. In its April 6, 2001 decision, the superior court analyzed the three cases on which Mindy relied-Miller v. Miller; State, Department of Revenue v. Fry; and Pacana v. State, Department of Revenue - and reaffirmed its prior decision: "Because Ashley's father, rather than Plaintiff, is the 'source' of the benefits to Ashley, Plaintiff is not entitled to an offset of those benefits against her income or child support obligation." The superior court, however, adjusted its calculation of support on other grounds and ordered Gary to pay Mindy $259 per month in child support.

On September 6, 2001, after having denied two motions by Mindy for reconsideration, the superior court entered a child support order requiring Gary to pay $270.50 to Mindy in child support, effective April 6, 2001. Mindy appeals both the interim and final child support orders on the basis that the CIB payments should not be included in her income.

IIL DISCUSSION

A. Standard of Review

We generally will review a child support decision only for an abuse of disceretion or for a determination of whether the trial court's factual findings are clearly erroneous. However, whether the trial court properly included Social Security CIB benefits in Mindy's income is a question of law that we review de novo. Under this standard, we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy.

B. The Trial Court Erred by Including in Mindy's Income CIB Social Security Payments Made to Mindy for Ashley.

How to account for CIB payments that a child from a previous relationship receives and which are not attributable to the disability of either of the parties is an issue of first impression in this court. The trial court included the Social Security CIB payments in Mindy's income, justifying its decision on the basis that "Rule 90.3 requires the court to consider the parent's total income from all sources." The court went on to explain:

Section IIIA. of the Commentary to Rule 90.3 provides that this directive be interpreted broadly "to include benefits which would have been available for support if the family had remained intact." The court notes that the social security benefits at issue here are not "means-based" sources of income, thus they are not deductible on this basis. In addition, it would appear to the court that the social security payments-albeit received for her daughter-are made available to Ms. Os-mar to do with as she sees fit. The court sees no evidence to suggest that there are any restrictions whatsoever on the uses to which Ms. Osmar can put these funds. Under these cireumstances, the court finds that these funds are properly considered "income" for purposes of calculating child support under Rule 90.3 and plaintiff has cited no authority to the contrary.

We disagree with the superior court's analysis. The superior court is correct that Rule 90.83(a)(1) provides that, for purposes of calculating child support, income includes "the parent's total income from all sources." And the commentary to Rule 90.3 indicates that income "should be interpreted broadly to include benefits which would have been available for support if the family had remained intact," including Social Security, veterans benefits, and insurance benefits which replace earned income such as workers' compensation or periodic disability payments.

However, there are restrictions on Mindy's use of Ashley's Social Security CIB payments. Federal law requires that Social Security disability and death benefits paid to a child be used for that child's maintenance:

We will consider that payments we certify to a representative payee have been used for the use and benefit of the beneficiary if they are used for the beneficiary's current maintenance. Current maintenance includes costs incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.

Mindy has a duty to invest or conserve for Ashley any payments in excess of Ashley's maintenance needs. Mindy is constrained by federal law in her use of the Social Security payments for anything other than the maintenance and care of Ashley, and that money was therefore not available to Mindy to support Steele when Mindy and Gary were still married and the family was intact.

In addition, under Alaska Civil Rule 90.3, child support is not income. As Mindy correctly characterizes it: "Here the payments are received because of the death of Ashley's father and come to Ashley, through Mindy, as a substitute for kis child support. Thus they are not income to Mindy, but similar to child support for Ashley." The Social Security payments should have been excluded from Mindy's income in calculating the child support award for Steele.

This conclusion is consistent with our prior decisions on how to account for Social Security benefits resulting from the disability of a parent who is a party to a child support dispute. In Miller v. Miller, we held that "benefits payable to a child must be included as income of the contributing parent for purposes of establishing the appropriate amount of child support under Civil Rule 90.3." The contributing parent is then credited for the Social Security payments made to the child on his behalf. We reasoned:

The primary purpose of Civil Rule 90.3 is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of the parents to pay. Social security benefits payable to a child are geared toward fulfilling the same objective. Although the benefits are payable directly to the child rather than through the contributing parent, the child's entitlement to payments derives from the parent, and the payments themselves represent earnings from the parent's past contributions.

Applying Miller to the present case, if Ashley's father were still alive, as the contributing parent he would have to include the $954 in his income for purposes of calculating his child support obligation for Ashley. He would then be permitted a $954 credit toward his total child support obligation, and the Social Security payments for Ashley could satisfy his obligation in full. Since the payments would be included in Ashley's father's income, it follows that they should not be included in Mindy's income.

IV. CONCLUSION

Mindy is restricted by federal law to use the CIB payments exclusively for Ashley's maintenance and must invest or conserve any amount paid to her for Ashley which exceeds the cost of Ashley's maintenance. Because the CIB payments are not available to Mindy for Steele's care, they should not be included in her income for purposes of Rule 90.8. We REVERSE and REMAND for recalculation of the child support award in accordance with this decision.

      . $90 P.2d 574 (Alaska 1995).

      . 926 P.2d 1170 (Alaska 1996).

      . 941 P.2d 1263 (Alaska 1997).

      . Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000); Hermosillo v. Hermosillo, 962 P.2d 891, 893 (Alaska 1998).

      . Hermosillo, 962 P.2d at 893 ("Whether the superior court appropriately considered CIB in the computation of [the father's] child support arrears is a question of law that we review de novo."); see also J.L.P. v. V.L.A., 30 P.3d 590, 594 (Alaska 2001) ('The interpretation of Alaska Civil Rules governing child support orders is reviewed de novo.").

      . Miller, 890 P.2d at 576.

      . Alaska R. Civ. P. 90.3 cmt. III.A. Mandatory deductions are subtracted from each parent's income, including "[clhild support and alimony payments paid to another person arising out of different cases ... if three conditions are met." Alaska R. Civ. P. 90.3 cmt. III.D; see also Alaska Civil Rule 90.3(a)(1)(B). A deduction is also permitted for child support paid for children from prior relationships living with the parent, "even if the party is the custodial parent of the 'prior' children and does not make child support payments to the other parent of the children." Alaska R. Civ. P. 90.3 cmt. III.D; see also Alaska R. Civ. P. 90.3(a)(1)(C).

      . 20 C.F.R. § 404.2040(a)(1) (2002).

      . See 20 C.F.R. § 404.2045(a) ("After the representative payee has used benefit payments consistent with the guidelines in this subpart (see § 404.2040 regarding use of benefits), any remaining amount shall be conserved or invested on behalf of the beneficiary.").

      . See C.G.A. v. State, 824 P.2d 1364, 1367 (Alaska 1992) (noting that the State may not order a noncustodial payee parent to pay over a child's Social Security benefits to a custodial parent, even if the payee parent was inappropriately spending the beneficiary's funds, because federal law provides a remedy when an appointed payee abuses her fiduciary duty).

      . Faulkner v. Goldfuss, 46 P.3d 993, 998 (Alaska 2002); Alaska R. Civ. P. 90.3 cmt. III.A. Although the Internal Revenue Code's definition of "income" differs from Rule 90.3's definition in other respects, it is noteworthy that federal income tax law also excludes child support from income. See 26 U.S.C. § 71(c)(1) ("Subsection (a) [providing that '[gJross income includes amounts received as alimony or separate maintenance payments'] shall not apply to ... a sum which is payable for the support of children of the payor spouse.").

      . 890 P.2d 574, 577-78 n. 5 (Alaska 1995) (emphasis added).

      . Id. at 577.

      . Id. (internal quotations and citations omitted).

      . On remand, the trial court is free to reconsider whether good cause exists to vary the newly calculated award under Rule 90.3(c)(1).


source: Caselaw Access Project

author: MATTHEWS, Justice.

license: Public Domain

text:
    Faith M. MOELLER-PROKOSCH, Appellant, v. Chuck F. PROKOSCH, Appellee.
    No. S-10486.
    Supreme Court of Alaska.
    Aug. 19, 2002.

      David A. Colter, Golter & Logsdon, P.C., Wasilla, for Appellant.
    No brief filed for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

The main question presented by this case is whether the superior court adequately complied with instructions contained in our prior opinion. For the reasons explained in this opinion we conclude that it did not and remand for further proceedings.

Prior Proceedings

This case is before us for the second time. In our first opinion, we described the initial custody decree of the superior court as follows:

Superior Court Judge Beverly W. Cutler awarded the parties joint legal custody of their son. Faith was awarded primary physical custody. The court set out explicit parameters for the location of the child's residence with Faith: Faith was not allowed to "relocate Jeremiah to a residence that is more [than] sixty-five (65) miles . Mr. Prokoseh's residence, as long from .. as his residence is known." In the event Chuck moved outside of the sixty-five mile area, the residence restriction would be lifted automatically.[]

Faith, who lives in Palmer but wished to relocate to Florida, appealed. We vacated the decree and remanded the case to the superior court. We instructed the court to make a determination as to whether it would be in the best interests of the parties' son, Jeremiah, to be in the physical custody of Faith or Chuck, based on an assumption that Faith would move to Florida. This best interests determination was to be made in light of all of the relevant statutory factors set out in AS 25.24.150(c). We also directed the court to determine whether Faith had legitimate reasons for moving to Florida, noting that "a proposed move is legitimate if it 'was not primarily motivated by a desire to make visitation ... more difficult.'"

Our decision was published on July 27, 2001. On August 20, 2001, Faith moved, on an expedited basis, for permission to take Jeremiah to Florida so that he could start school there before the Fall 2001 term. She argued that her reasons for moving to Florida were legitimate. Chuck, who lives in Anchorage, opposed the motion and asked the superior court to find that if Faith moved to Florida, it would be in Jeremiah's best interest to remain in Alaska with him.

On August 31 the court held an unscheduled telephonic hearing on Faith's motion. Judge Cutler first observed that "if the court were to consider an award of primary physical custody to Chuck ... the court would have to afford [Faith] a hearing before doing it." Judge Cutler then announced that if she were to rule on the question of physical custody of Jeremiah, she would rule that it would be "detrimental to Jeremiah's best interest for [Faith] to continue to have primary physical custody if she's going to move to Florida." But rather than making a best interests determination assuming Faith moved to Florida, the court proposed to modify the award of joint legal custody in one respect. The court indicated an intention to give Chuck sole legal authority to decide where Jeremiah would go to school. Under this proposal, Faith would keep primary physical custody of Jeremiah as long as she decided to stay within a reasonable distance of Chuek's choice of school.

The court invited further briefing in response to this proposal. In response, Faith argued that the court's intended order was not materially different from the original decree that had been vacated and that it would not comply with the instructions given by this court on remand. Chuck responded, also expressing doubt as to whether the proposed modification of legal custody would satisfy this court's instructions on remand. He suggested that the court transfer physical custody to Chuck in light of Faith's move to Florida.

On October 30, 2001, the court entered an oral order along the lines of the order it proposed on August 31. The order modified the award of joint legal custody by giving Chuck sole authority to decide where Jeremiah should attend school. The order also shifted physical custody to Chuck if Faith chose to live at more than a reasonable distance from Jeremiah's school. The court later entered a written order in accordance with the October 30 order, and indicated that the oral remarks of October 30 would stand as findings of fact and conclusions of law.

Arguments on Appeal and Summary of Our Decision

1. The modified joint legal custody order had the same effect of preventing her from moving as the prior decree that we vacated;

A. Faith argues that the superior court did not comply with our remand instructions in the following respects:

2. The court, in ordering an automatic shift in physical custody to Chuck if Faith chose to move to Florida, did not,

a. Truly assume that the move would take place,
b. Determine whether her motives for the move were legitimate, c. Consider all relevant statutory factors.

B. Faith also contends that the court should not have contingently changed physical custody without first holding an evidentiary hearing.

Chuck did not file a brief on appeal.

We do not agree with Faith's conclusion under Al. But we substantially agree with arguments AZ.a. and b. These conclusions moot the remaining arguments. But on remand the court should hold an evidentiary hearing as to developments occurring since the original trial, and should consider all relevant statutory factors.

Standard of Review

" Upon remand of a case by this court it becomes the duty of the lower court to obey the mandate and render judgment in conformity." Whether a lower court on remand has correctly applied our mandate is a question of law which we review de novo."

Requirements and Meaning of Our Prior Opinion

Our prior opinion required the superior court, on remand, to assume that Faith would move to Florida, and based on this assumption, determine whether it would be in the best interests of Jeremiah to be in the physical custody of Faith or Chuck, using all of the relevant factors of AS 25.24.150(c). In making this determination, we directed that the court should decide whether Faith's motives for moving to Florida were legitimates. We also suggested, but did not require, that the court make a second best interests determination based on an assumption that Faith would not move to Florida.

Although we directed the trial court to determine whether Faith's motives for moving to Florida were legitimate, we did not specify in detail what the consequences would be if Faith's motives were found to be legitimate. We said that if a move is not legitimately motivated "the court must take this finding into account in its best-interests analysis." We should have added that if a move is found to be for legitimate reasons, the court should not hold the move against the party who proposes to move. The court should not find her to be, because of the move, "selfish and unwilling to promote an open and loving relationship between" the child and the other parent. Legitimately motivated moves are a common feature of "today's mobile society. Such moves would be unfairly deterred if courts were to hold that the moving parent has demonstrated by her desire to move a parental deficiency or weakness.

Mirroring the Prior Decree

We agree with Faith that the current order in practical effect is nearly the same as the initial decree that we vacated-but worse from Faith's perspective. The initial order awarded Faith primary physical custody and provided that Faith could not relocate Jere-migh more than sixty-five miles away from where Chuck was living. Currently, Faith still has primary physical custody so long as she lives within a "reasonable traveling distance" of Jeremiah's school. Judge Cutler made clear that she expected that Jeremiah's school would be in Palmer, where Faith lived, for the remainder of the 2001-2002 school year. So, at.least for the present, no real status change has been effected.

But under our remand instructions a result similar to that of the initial decree is among the reasonably possible outcomes. Therefore, the mere fact that the current order effectively mirrors the initial decree does not necessarily mean that Judge Cutler did not follow our prior opinion.

Failing To Assume that Faith's Move Would Take Place

More telling is Faith's argument that the trial court did not decide the question of physical custody based on an assumption that Faith would move from Alaska. The court found in its oral remarks of October 30, 2001, that Faith's proposed move to Florida would thwart Chuck's opportunity to have an open, loving and frequent relationship with Jeremiah. The most important factor in the court's decision was the court's belief that it was in the best interests of Jeremiah to have frequent contact with both parents. The court made the same point at the August 31, 2001 hearing. When pressed by counsel at the August 31 hearing to proceed based on the assumption that Faith would move, the court was resistant:

Thus, the primary reason for the trial court's decision is that Jeremiah's best interests will be served if he continues to have frequent contact with both parents. This is only possible, however, if Faith does not move. The trial court's reasoning is therefore fundamentally inconsistent with the assumption we directed the court to make. If Faith moves to Florida, Jeremiah will lose frequent contact with one of his parents. Under our remand instructions the court was to take the move as a given and determine whether it would be in the best interests of Jeremiah to be in the custody of his father in Alaska or of his mother in Florida.

[Tlhere's no necessity for them to live in two different states. It would be different if there were a necessity and the court said, let's face the fact the parents have to live in two different states, and therefore we just have to decide what's best for this kid since the parents have to live in two different states and nobody can do anything about it. *
... The issue ... -the statutory criteria is the ability of the parent to promote an open loving relationship. And I guess in a sense the court is saying Faith by moving is showing that she lacks that ability. It's not a priority enough for her to make the self-sacrifice to stay where she really doesn't want to stay for reasons that are certainly at least partly legitimate.

Similarly, the court's reasoning that Chuek's opportunity to have a close relationship with Jeremiah would be hindered by Faith's move to Florida is incomplete given the assumption we directed the court to make. Clearly, if Faith moves, one party or the other is going to be separated from Jeremiah for each school year. Under our remand instructions, this was meant to be the premise on which the court's analysis would be based. Instead, it served as the basis for the court's decision.

We therefore agree with Faith that the reasoning used by the trial court indicates that the court did not decide Jeremiah's physical custody based on the assumption that Faith would move to Florida.

Failing To Determine Whether Faith's Motives Were Legitimate

In our instructions on remand, we emphasized the need for the trial court to make a determination as to whether Faith had legitimate reasons for moving. But the court addressed this issue only casually and ambiguously. It stated that the need to promote an open, loving, frequent relationship with Chuck is "not a priority enough for [Faith] to make the self-sacrifice to stay where she really doesn't want to stay for reasons that are certainly at least partly legitimate." As we noted, "a proposed move is legitimate if it 'was not primarily motivated by a desire to make visitation ... more difficult'" The court's remark does not resolve this issue.

Notwithstanding that the court did not resolve the issue of whether Faith's motives for moving to Florida were legitimate, the court found the move to be a negative factor against Faith and in favor of Chuck in making its best interests determination. As we have indicated in today's opinion-but not clearly in our earlier opinion-it is impermissible to count Faith's move to Florida as a negative best-interests factor personal to Faith if her reasons for moving are legitimate-that is, if the move is not primarily motivated by a desire to make visitation more difficult. If, on the other hand, Faith's reasons are not legitimate, "the court must take this finding into gccount in its best-interests analysis."

Conclusion

We conclude, therefore, that the trial court did not follow our instructions on remand, both because the court's reasons were inconsistent with a custody determination based on an assumption that Faith would move to Florida, and because the court did not make a finding as to whether Faith's move was motivated by legitimate considerations.

Faith also argues that the court erred by failing to consider all relevant statutory factors in making a best-interests determination and by failing to hold an evidentiary hearing. We need not resolve these questions. On remand, we are confident that the court will address all relevant factors. Further, we believe that there should be a supplemental evidentiary hearing to bring the court up-to-date on factual developments that have occurred since the December 1999 custody trial.

VACATED and REMANDED for further proceedings in accordance with this opinion.

      . Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001) (hereinafter "Moeller I ").

      . Id. at 316 (alteration in original).

      . Id. at 315.

      . Id. at 316.

      . Id. (quoting House v. House, 779 P.2d 1204, 1208 (Alaska 1989)).

      . Williams v. Crawford, 47 P.3d 1077, 1079 (Alaska 2002) (quoting Davis v. Hallett, 630 P.2d 1, 2 (Alaska 1981)).

      . Moeller I, 27 P.3d at 316 & n. 4.

      . Id. at 316.

      . Id. at 317 n. 8.

      . Id. at 316.

      . Id. at 317 n. 9.)

      . Id. at 316.

      . The court stated:
      And so I find that Mr. Prokosch should be given sole legal custody to make the decision on where Jeremiah goes to school because I find if Faith is given that sole legal custody to make that decision she will make that in a way that deliberately thwarts the opportunity of the other parent to have an open, loving, frequent relationship. And while it may not be deliberate and that is her only intended result it is certainly an intended result and it is also defiantly a willfully brought about factual result because she will choose to put the child in the school that is about four or 5,000 miles away from where his father lives, which means that he will not be able-he, the child-will not be able to maintain an open, loving, frequent relationship with the other parent, particularly for a child this age for whom getting on the telephone doesn't constitute an open, loving, frequent relationship, even if he can get on the phone frequently.

        I do find that if Mr. Prokosch is given the authority to make that decision, the sole legal custodial decision of where the child is enrolled in school that Mr. Prokosch will enroll this child in school within a reasonable distance of where the other parent presently is located. That Mr. Prokosch will not choose to enroll the child in a school that is willfully chosen as one that is thousands and thousands of miles away from where the other parent presently lives. Thus, Mr. Prokosch is the parent who, between these two parents, who is more capable than the other parent of fostering an open, loving, frequent relationship with the other parent.

      . The court stated:
      And for several more years it appears beyond dispute in this case that the frequent presence of each of these child's parents in his life is very important to his well being. And probably the most important difference in a decision here on who gets legal or physical custody is that factor in the custody statute that we are directed to consider and that is whether the party who has custody is capable of fostering [an] open, loving, frequent, relationship with the other parent.

      . The court stated:
      [Blut [Jeremiah] is in a situation that is very, very, very important to the development of a child of his age, who's a child of divorce, who's an only child without siblings and so forth, and that is to have an open, loving, frequent contact relationship with each of his two parents so that as he develops into what we hope is a normal, ordinary, responsible adult, he can healthfully develop in that direction as a result of feeling that both of his parents love, nurture, support him, spend a fair amount of time with him. And that he's not suffering from having a big hole in his life because either his mother is totally out of the picture or his father is totally out of the picture most of the time, and that he suffers from the, you know, absent parent syndrome or whatever it's called in the psychological literature.
      Clearly, a child of Jeremiah's age and based on all the description I heard at trial and so forth, it's very important on top of the stress of this divorce to feel that each of his parents does care for him and support him and love him and nurture him and guide him and role model for him, and that this is keeping him more or less psychologically sound notwithstanding the divorce. That if he's in a situation where one of those parents is basically totally absent, that he is likely to deteriorate and to suffer from the syndrome where you feel like you have a big hole in your life because you never get to see one of two people who are very important to you.
      In other words, it would be in some ways comparable to the sudden death of a parent. It might not be quite as dramatic and quite as negative a situation as the death of a parent, but there's certainly no reason to put this child who we hope is developing into a normal, ordinary, responsible older child and then a normal, ordinary, responsible adult, no reason to put him at risk of acting out becoming a victim, becoming negative, becoming less healthy than he is because all of a sudden one of his parents is removed from his life. And it does seem to me highly likely that that would happen.

      . Moeller I, 27 P.3d at 316.

      . Id. (quoting House v. House, 779 P.2d 1204, 1208 (Alaska 1989)).

      . Id.

      . Notwithstanding the provisions of Appellate Rules 507(b) and 512(a), this opinion takes effect upon the date of issuance of this opinion.


author: MANNHEIMER, Judge.

text:
    STATE of Alaska, Appellant, v. David T. PRINCE, Appellee.
    No. A-7681.
    Court of Appeals of Alaska.
    Aug. 16, 2002.

      Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    John B. Salemi, St. Johns, Michigan, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Under Alaska's "local option" law, AS 04.11.491, the voters of a municipality may choose to prohibit the sale, the importation, or even the possession of alcoholic beverages within their city. The voters of St. Mary's have exercised this authority; it is unlawful to bring alcoholic beverages into St. Mary's or to possess alcoholic beverages within its boundaries.

The question presented in this appeal is whether this ban on aleoholic beverages can be enforced on state-owned land that lies within the boundaries of St. Mary's. The answer is yes. Enforcement of the municipal ban on the importation and possession of alcoholic beverages is fully consistent with state law. Indeed, it is state law that authorizes local voters to restrict or ban alcoholic beverages within their communities, and it is state law that defines and punishes the offense of violating such local bans. Accordingly, the ban on alcoholic beverages applies to state-owned property lying within the municipal boundaries of St. Mary's.

Underlying facts, and explanation of our map

The municipality of St. Mary's lies on the Andreafsky River in western Alaska, about three miles upstream from where the An-dreafsky flows into the Yukon River. As authorized by AS 04.11.491, the voters of St. Mary's have approved a ban on the importation and possession of aleoholie beverages within their municipality.

On the night of June 28, 1999, the St. Mary's police received a tip from the Alaska State Troopers that someone was bringing alcoholic beverages to St. Mary's by boat via the Andreafsky River. The boat described by the troopers arrived in St. Mary's early the next morning. The St. Mary's police found the boat with its bow on the beach and its stern in the river. Two men-David T. Prince and a co-defendant-were lying in the boat, either asleep or passed out from intoxication.

The officers observed cartons of three different brands of beer in the boat. A subsequent search of the boat yielded 119 bottles of whiskey, 12 bottles of rum, and 8 bottles of liqueur. Prince was charged with two felonies under state law: importation of 12 liters or more of distilled spirits into a municipality that has prohibited importation of alcoholic beverages, and possession of alcoholic beverages for sale in a municipality that has prohibited sale of alcoholic beverages.

The attached map will help readers understand the discussion that follows. 'This map depicts the portion of the Andreafsky River and adjacent river bank where Prince's boat landed and was seized. The dark black lines show the pertinent municipal boundaries of St. Mary's as certified in March 1981 by the Alaska Department of Community and Regional Affairs. (This department has since been renamed the Department of Community and Economic Development.)

The Department used a metes and bounds description when it certified the boundaries of St. Mary's; but in this case, a picture is easily worth the 468 words of that verbal description.

The "X" and the accompanying initials were placed on the map by St. Mary's city manager Walton Smith, who appeared as a witness at the evidentiary hearing in this case. Smith drew the "X" to mark the spot where he observed Prince's boat on the morning in question.

The scale of this map is approximately 1% inch = 1 mile. (The numbered boxes represent sections within Range 76 West, Township 28 North, Seward Meridian. These see-tions are slightly less than 1 mile on each side.)

160 Alaska

53 PACIFIC REPORTER, 3d SERIES

The superior court’s dismissal of the indictment

Following his indictment, Prince asked the superior court to dismiss the charges. He

contended that he had committed no punishable act within the municipality of St. Mary’s.

Prince conceded that he had brought liquor with him in the boat, but he claimed that neither he nor his boat had ever been

within the boundaries of St. Mary's. Specifically, Prince pointed out that the State of Alaska owns the portion of the river and the river bank where his boat landed, and he argued that a municipality can not assert Jurisdiction over land owned by the State of Alaska.

Prince acknowledged that the State had leased this river land to St. Mary's (for construction of dock improvements), but he contended that this land could not be part of the city itself because the State remained owner of the land in fee simple. Prince's attorney summarized his argument as follows:

Defense Attorney: A conviction for importation [or possession] requires, by definition, that the accused actually enter the community in which possession of alcohol has been banned.... A person may stand, or float, outside a municipality where possession [of alcoholic beverages] is banned by local option till doomsday and still not commit a crime. The actus reus of the crime is crossing the municipal boundary. As Mr. Prince did not cross the boundary, he did not commit the crime.

In response to Prince's motion, the State asked the superior court to hold an evidentia-ry hearing so that the State could establish that the municipal boundaries of St. Mary's encompassed the portion of the Andreafsky River and adjacent shore where Prince's boat was found. The State did, in fact, present testimony and exhibits to this effect.

In particular, the State introduced the official "Certification of Boundaries [of the] City of St. Mary's"-a document issued by the Department of Community and Regional Affairs in 1981, which gives a metes and bounds description of the municipal boundaries. The State also introduced two section maps that physically depict these boundaries. Finally, the State presented two witnesses who identified the spot where Prince's boat landed on the north bank of the Andreafsky River-a spot well within the municipal boundaries. Indeed, as shown in our accompanying map, the city of St. Mary's extends south across and beyond the Andreafsky River for more than another mile.

But Prince's attorney declared that all this evidence was "ultimately irrelevant":

Defense Attorney: The issue here is quite simple.... [The Submerged Lands Act of 1958 ... ceded to the states ownership of, and title to, all lands beneath navigable state waterways. The Submerged Lands Act was made applicable to Alaska at the time of statehood.... The City of St. Mary's may define its borders to include the [Andreafsky River], but it cannot annex what it does not own. The boundaries of the City may extend over the river, but they do not include the river [itself] and the lands below [the] mean high water [line].

In other words, Prince argued that even though state-owned land may lie within the ostensible boundaries of a municipality, the state-owned land constitutes an enclave where municipal laws-and, in particular, municipal bans on aleohol-hold no sway.

After considering this matter, Superior Court Judge Dale O. Curda agreed with Prince. In his written decision dismissing the indictment, Judge Curda adopted Prince's contention that St. Mary's could not exercise jurisdiction over land owned by the State:

Since [the] lands [in question] are owned by the state ..., they cannot be annexed by the city. At the time the alcohol was seized, Prince's boat was anchored on ... state land, not land belonging to the City of St. Mary's.... [Blecause the state presented no ... evidence [that] Prince entered the city in possession of alcohol, the indictment must be dismissed.

The parties' arguments on appeal, and our analysis of Judge Curda's decision

The State now asks us to reverse the superior court's dismissal of the indictment.

There is some question as to whether the State is entitled to appeal the superior court's dismissal of the indictment. One other charge against Prince-a misdemeanor-was not dismissed and remains pending. Thus, the superior court's dismissal of the indictment is arguably not a "final order". However, we conclude that this issue is moot. Even assuming that the State had no right to appeal the dismissal of the indictment, this court has the power to treat the State's ostensible appeal as a petition for review. Given the legal issue presented here, we would grant the petition and decide the validity of the indictment.

The State concedes that the land at issue is owned by the State However, the State contends that the St. Mary's ban on aleoholie beverages applies to all land within its municipal boundaries, even land owned by the State.

Prince, for his part, has abandoned his contention that state-owned land is exempt from municipal law. But rather than conceding that the superior court committed error, Prince now argues that Judge Curda did not rely on this theory when he dismissed the indictment. Prince asserts that Judge Curda did not base his decision on the fact that the State owned the land in question, but rather on the conclusion that the State failed to prove that this land was physically located within the boundaries of St. Mary's.

We reject Prince's interpretation of Judge Curda's ruling. In Prince's motion to dismiss the indictment, he did not assert that his boat was found outside the boundaries of St. Mary's-except in the technical sense that the boat was on state-owned land and that this state-owned land constituted a protected enclave within the municipal boundaries. We concede that Judge Curda's decision is worded ambiguously in places, but he was not responding to the argument that Prince makes on appeal. Rather, he was responding to Prince's argument that, as a legal matter, state-owned land is exempt from municipal jurisdiction.

Moreover, even if Prince were correct-i.e., even if Judge Curda found that Prince's boat did not land within the physical boundaries of St. Mary's-this finding would be clearly erroneous. As can be seen from our map, the boundaries of St. Mary's extend for more than a mile in any direction from the spot on the north bank of the Andreafsky where Prince's boat landed.

Thus, if Prince is to prevail in this appeal, it must be under the theory that he advanced in the superior court and that he now declines to argue: the theory that state-owned land within the boundaries of a municipality is exempt from a municipal ban on the importation and possession of alcoholic beverages.

A municipality can enforce its ordi-mances on state or federal land within its boundaries unless the state or federal government has taken action to exempt its property from local control

Generally speaking, a municipality's authority to enforce its ordinances on land within its boundaries does not depend on the identity of the landowner. (Conversely, when a municipality purchases land outside its borders, it cannot enforce its ordinances on that land except as authorized by state law. See AS 29.35.020.)

The situation is more complicated when the land is owned by the state government (or the federal government). Because the state and federal governments possess a superior sovereignty, they are entitled to enact laws that exempt their property from municipal authority in whole or in part. But it is not state or federal ownership of the land that creates this exemption from municipal authority. Rather, it is the state and federal governments' exercise of their lawmaking power-their power to define and limit the scope of a subordinate sovereign's political authority. Thus, when the State of Alaska has not expressly or impliedly limited municipal authority to enforce ordinances on state-owned land, that land remains subject to municipal authority to the same extent as any other landowner's property.

The United States Supreme Court discussed this principle of law in Ft. Leavenworth Railway Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885). The question was whether the State of Kansas could levy property taxes on a railroad located within a federal military reservation-land owned by the federal government and set aside for future military uses. The railroad argued that because the land was owned by the federal government, the land (and the property on it) was exempt from state tax laws. The Supreme Court rejected this contention:

The land constituting the [military] reservation was part of the territory acquired in 1808 by cession from France [-i.e., in the Louisiana Purchase.] [Ujntil the formation of the state of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over [this land]. ... But in 1861{,] Kansas was admitted into the Union upon an equal footing with the original states; that is, with the same rights of political dominion and sovereignty, subject like them only to the constitution of the United States. Congress might undoubtedly ... have stipulated for retention of ... political authority ... over the [military] reservation -.; that is, it could have exeepted the place from the jurisdiction of Kansas, as one needed for the uses of the [federal] government. But ... no such stipulation or exception was made. The United States, therefore, retained ... only the rights of an ordinary proprietor; except [for] that part of the tract, which was actually used for a fort or military post, [which would put that part] beyond such control of the state, by taxation or otherwise, as would defeat its use for those purposes. [But sol far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor. The state could have exercised, with reference to it, the same authority and jurisdiction which she could have exercised over similar property held by private parties.

Id., 114 U.S. at 526-27, 5 S.Ct. at 996, 29 L.Ed. at 265.

The Supreme Court of Virginia reached a similar conclusion in Smith v Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978). The defendant in Smith raped and then murdered a woman along the banks of the James River. The defendant "acknowledg[led] that the crime was committed within the geographical boundaries of [Virginia], but he challenged the jurisdiction of the Virginia courts to try him, "since the land in question is owned by the United States". Smith argued "[that] it was incumbent upon the Commonwealth to show that the United States did not have exclusive jurisdiction over crimes committed [on this land]". The Virginia Supreme Court answered as follows:

It is well settled ... that the mere ownership of land by the United States does not divest a state of its jurisdiction over that land, and that the nature and extent of the federal jurisdiction is dependent upon the consent of the state. James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1987)[.] Accord, Waltrip v. Commonwealth, 189 Va. 365, 53 S.E.2d 14 (1949). The United States was ceded concurrent jurisdiction by statute over crimes committed on land to which it holds title within [this] Commonwealth. [U.S.] Code § 7.1 21(1) (Replacement Vol.1978). ... In light of the cession [of concurrent jurisdiction] by statute, it is presumed that the Commonwealth retains concurrent jurisdiction over the area embracing the locus of the crime. To hold otherwise, would be to require the Commonwealth to prove the negative.... Since defendant adduced no evidence to show the affirmative, the presumption prevails and the trial court's [denial of] the motion to dismiss was proper.

Smith, 248 S.E.2d at 139-140.

These cases stand for the proposition that federal ownership of land does not, per se, forbid a state from exercising its political authority over the land. An analogous rule applies to municipal-state relations: state ownership of land does not, per sg, forbid a municipality from exercising political authority over the land.

The Ohio Court of Appeals recently addressed this issue in City of Columbus v. Spingola, 144 Ohio App.3d 76, 759 N.E.2d 473 (2001). The city had enacted an ordinance that forbade acts of "ethnic intimidation". The issue was whether the city could enforce this ordinance against a defendant who committed an act of intimidation on land owned by the State of Ohio-the grounds of the Ohio Statehouse. The court concluded that, under the home rule provisions of Ohio law, "municipalities [are authorized] to adopt and enforce police regulations [on all land] within their territorial limits, provided the regulations are not in conflict with [the] general laws [of the State of Ohio}".

Finally, in People v. Weiner, 85 Misc.2d 161, 378 NY.S.2d 966 (N.Y.City Crim.Ct. 1976), the defendant was charged with erimi-nal mischief for defacing a wall at the United Nations Building. He argued that the City of New York had no jurisdiction to prosecute him because the United Nations grounds are owned by that international organization. The court concluded that the international ownership of the property did not deprive the City of New York of jurisdiction over the person of the defendant or the subject matter of the offense-because, under the terms of a treaty between the United States and the United Nations (a treaty known as the "Headquarters Agreement") criminal infractions committed on property located within the United Nations headquarters district are, for jurisdictional purposes, to be deemed crimes committed against property located in New York County. The court additionally noted that, "in [the] absence of any rules or regulations of the United Nations in conflict with the local law, the local law applies".

We now turn to the superior court's ruling in the present case.

In Alaska, state-owned land within a municipality is not exempt from state statutes that prohibit people from violating a municipal ban on the importation and possession of alcoholic beverages

We have been discussing the general question of whether a municipality can enforce its ordinances on state or federal land within its boundaries. But Prince's case does not raise this precise issue. It is true that the municipality of St. Mary's has enacted a local ban on the importation and possession of aleoholic beverages, but the municipality's power to enact such a ban is granted by state law (AS 04.11.491), and that ban is enforced by state law. Prince was charged with violating state criminal statutes: AS 04.16.200(e), which makes it a felony to transport or bring alcoholic beverages into a municipality that has prohibited the importation of alcoholic beverages, and AS 04.16.200(b), which makes it a felony to possess alcoholic beverages in a municipality that has banned their possession.

Thus, the question in Prince's case is whether people on state land are subject to state statutes-in particular, the statutes that enforce municipal bans on the importation and possession of alcoholic beverages. The answer is obviously yes.

The only remaining issue is the seope of these state criminal statutes. When the Alaska legislature chose to enforce municipal bans on alcoholic beverages by making it a crime under state law to violate these local bans, did the Alaska legislature intend to exempt people whose activities occur on state land located within municipal boundaries?

As explained earlier in this opinion, AS 04.11.491 authorizes municipal voters to enact "local option" ordinances-ordinances that restrict or prohibit the sale, importation, or possession of alcohol. Moreover, AS 29.35.080 expressly recognizes the authority of municipalities to "regulate the possession, barter, sale, importation, and consumption of alcoholic beverages" as prescribed in the local option statutes. Thus, a properly enacted municipal ban on alcoholic beverages does not conflict with state law; rather, it is consonant with state law.

Alaska law does contain provisions that limit the reach of a municipality's political authority over state land. See, for example, AS 29.45.030(a)(1), which prohibits a municipality from taxing property within its borders if that property is owned by the State, by the University of Alaska, by the Mental Health Trust, or by another municipality. But there is no similar statute that limits the reach of a municipal ban on the importation or possession of alcoholic beverages. Nowhere in the Alaska Statutes can we find any indication that the Alaska Legislature viewed state-owned land within municipalities as havens where people might go to avoid being prosecuted-under state criminal law-for violating a properly enacted local ban on the importation and possession of alcoholic bey-erages.

St. Mary's is a municipality whose voters have exercised their right under AS 04.11.491 to ban alcoholic beverages. Prince is charged with violating state law by importing alcoholic beverages into St. Mary's and possessing these beverages within the municipality's boundaries. Even though Prince's activities occurred on state-owned land within the municipality, he is still subject to the state statutes that forbid people from violating municipal restrictions on the importation and possession of alcoholic beverages. The superior court should have denied Prince's motion to dismiss the indictment.

Conclusion

The judgement of the superior court is REVERSED. The indictment is reinstated, and this case is remanded to the superior court for further proceedings on that indietment.

      . AS 04.16.200(e) and AS 04.16.200(b), respectively.

      . Under Alaska law, municipal boundaries (and any changes to those boundaries) must be approved by the Local Boundary Commission, an arm of the Department of Community and Economic Development. See AS 29.05.060-100, AS 29.06.040-050, and AS 29.06.090-130.

      . See Puhlman v. Turner, 874 P.2d 291, 293 n. 3 (Alaska 1994); Juneau v. Thibodeau, 595 P.2d 626, 631 (Alaska 1979); Moore v. State, 895 P.2d 507, 509 n. 2 (Alaska App.1995).

      . In the Submerged Lands Act of 1953, 43 U.S.C. §§ 1301-1356, the federal government gave the states title to all lands lying beneath navigable state waterways and upon the adjacent shores, up to the ordinary high water mark,. When Alaska became a state, it received the benefits of this Act. See the Alaska Statehood Act, Public Law 85-508, § 6(m), 72 Stat. 339, 343 (1983). Because the Andreafsky is a navigable river, the State owns the land below the river and along its shores, up to the mean high water Iine-includ-ing the spot where Prince's boat landed. The State's ownership of this land was confirmed by a plat that Prince introduced at the evidentiary hearing in the superior court.

      . Smith, 248 S.E.2d at 135.

      . Id.

      . Spingola, 759 N.E.2d at 477.

      . Weiner, 378 N.Y.S.2d at 969.

      . Id. at 972.

      . Id.


text:
    STATE of Alaska, Appellant, v. Brian SIMPSON, Appellee.
    No. A-8028.
    Court of Appeals of Alaska.
    Aug. 16, 2002.
    Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Brian Simpson is charged with driving while intoxicated in Anchorage in September 2000. Because Simpson has two prior convictions for "driving under the influence" in Montana, the State indicted him for felony DWI under AS 28.35.030(n) (third offense within five years). But Simpson questions whether his Montana convictions can properly be used as predicate convictions to support the Alaska felony DWI charge.

Under AS 28.35.030(0)(4), a conviction from another state can serve as a predicate for a felony DWI conviction in Alaska if the other state's law requires proof of elements that are "similar" to the elements of DWI under Alaska law. Thus, to resolve this appeal, we must compare the elements of Alaska's DWI statute, AS 28.35.030(a), to the elements of Montana Statute 61-8-401 ("driving under the influence of alcohol or drugs") and decide whether they are similar.

Simpson contends that Alaska law offers a potential defense to a driver who is involuntarily intoxicated, but Montana law does not. Simpson further contends that the Montana statute differs from Alaska law because it punishes even those defendants who perform no voluntary act. The superior court agreed with Simpson and, for that reason, concluded that Simpson's Montana convictions for driving under the influence did not qualify as prior convictions under AS 28.35.080(0)(4). The court therefore dismissed Simpson's indictment for felony DWL

For the reasons explained here, we have significant doubts as to whether Simpson's interpretations of Montana law are correct. But more important, AS 28.85.030(0)(4) does not require that an out-of-state statute be identical to Alaska's DWI law-only that it be "similar". Even assuming that Alaska and Montana differ in their treatment of involuntary intoxication or the requirement of a voluntary act, DWI prosecutions involving these situations-ie, situations where the driver has performed no voluntary act, or where the driver is involuntarily intoxicated-are exceedingly rare. They are so rare that, even with these arguable differences, we conclude that Montana's statute is "similar" to Alaska's. We therefore hold that Simpson's Montana convictions for driving under the influence qualify as prior convictions under AS 28.35.030(0)(4).

The wording of the two statutes

Alaska's DWI statute defines the crime as "operat{ingl or driving] a motor vehicle" when a person is "under the influence of intoxicating liquor ... or any controlled substance" or, alternatively, "when ... there is 0.08 percent or more by weight of alcohol in the person's blood". This definition is expanded by AS 28.40.100(a)(7), which specifies that the term "driver" includes "a person who ... is in actual physical control of a vehicle"

Montana Statute 61-8-401(1) defines that state's corresponding offense as "driv{ing] or be[ing] in actual physical control of a vehicle" when "a person ... is under the influence of . alcohol [or] a dangerous drug". (Under Montana law, having a blood-alcohol level of .10 or greater is not an alternative way of committing the offense; rather, if a driver has a blood-aleohol level of .10 or greater, this raises a rebuttable inference that the driver is under the influence. See Montana Statute 61-8-401(4)(c).)

It appears that Montana's statute is more restrictive than Alaska's in terms of what actions constitute the crime (since a person can not be convicted in Montana based on their blood-alcohol level alone). However, Simpson argues that Montana's statute is significantly broader than Alaska's regarding both the culpable mental state and the actus reus that the government must prove.

With regard to the culpable mental state, Simpson claims that involuntary intoxication is a potential defense to a DWI charge in Alaska but it is not a defense in Montana. And, with regard to the actus reus of the crime, Simpson claims that a person can be convicted of driving under the influence in Montana even though the person has performed no voluntary act.

Whether Montana and Alaska law differ regarding their treatment of involuntary intoxication as a potential defense to driving while intoxicated

In Morgan v. Anchorage, 648 P.2d 691 (Alaska App.1982), this Court examined the culpable mental states needed to establish the offense of driving while intoxicated. We rejected the notion that a DWI defendant must know that they are under the influence: "We do not believe that a person who intentionally drinks and intentionally drives must be aware that [they are] under the influence of aleohol in order to be convicted[.]" However, we indicated that the offense of driving while intoxicated requires proof that the defendant knowingly ingested intoxicants and knowingly operated or assumed physical control of a motor vehicle.

(The Morgan opinion uses the term "intentionally" instead of "knowingly". However, in context, it is clear that we meant "knowingly". The culpable mental state of "intentionally" refers only to a defendant's conscious desire to achieve a particular result. See AS 11.81.900(a)(1). Of the four culpable mental states defined in AS 11.81.900(a)(1)-(4), "knowingly" is the only one that applies to conduct. See Neitzel v. State, 655 P.2d 325, 326, 333 (Alaska App.1982), where we concluded that the statutory phrase "intentionally performs an act" really was intended to mean "knowingly performs an act".)

In addition, Alaska case law recognizes the defense of involuntary intoxication. Howeyver, neither this Court nor the supreme court has been called upon to examine how the defense of involuntary intoxication might pertain to a charge of driving while intoxicated.

Criminal law texts on this subject suggest that involuntary intoxication is potentially a defense to driving while intoxicated, but only in limited cireumstances. For a general discussion of the effect of involuntary intoxication on criminal liability, see Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982), pp. 1001-05, and Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 4.10(8), Vol. 1, pp. 558-59. These commentators explain that involuntary intoxication is normally treated as a species of mental defect. It does not constitute an absolute defense to a crime, but a defendant is allowed to show that, because of involuntary intoxication, they meet the test for insanity-for instance, that they were unable to appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of the law, if that is the applicable test in that jurisdiction.

At the same time, the text writers suggest that we may have gone too far in Morgan when we suggested that DWI invariably requires proof that the defendant knowingly ingested alcohol or other intoxicants. In their discussion of involuntary intoxication, Professors Perkins and Boyce point out that "(aln important qualification [must] be noted":

If one should become intoxicated as a result of an innocent mistake, force[,] or fraud, but after becoming drunk was still sufficiently in possession of his faculties to know what he was doing, and to understand the character of his acts, and with such knowledge and understanding should voluntarily ... drive a motor vehicle on a public highway, the involuntariness of the intoxication would not excuse him because the prohibited act itself was done voluntarily.

Perkins & Boyce, p. 999.

In contrast to the way that we interpreted the offense of driving while intoxicated in Morgan, Montana law designates driving under the influence as a crime of "absolute liability". According to Montana Statute 45-2-104, the phrase "absolute lability" means that a person can be convicted of the offense "without having, as to each element of the offense, one of the [culpable] mental states of knowingly, negligently, or purposely". In other words, the Montana concept of "absolute liability" is essentially what we would call "strict liability". Thus, one might argue that Montana law would allow a defendant to be convicted of driving under the influence even though the defendant did not knowingly ingest alcohol or other intoxicants.

Simpson contends that the Montana DUI law does indeed impose strict liability on people who are involuntarily intoxicated-people who, for example, become intoxicated after someone slips aleohol or another drug into their drink without their knowledge. But Simpson's argument fails to take account of Montana Statute 45-2-208, which codifies a defense of involuntary intoxication.

Montana Statute 45-2-203 begins with the general rules that an intoxicated person "is criminally responsible for his conduct", that "an intoxicated condition is not a defense to any offense", and that a person's intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of the offense" But then the statute declares that these rules do not apply if the person was involuntarily intoxicated-if "the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition".

We have not been able to find any Montana appellate decision that discusses the interplay between erimes of "absolute liability" and Montana's statutory defense of involuntary intoxication. But in the absence of judicial clarification from the courts of Montana, we are unwilling to assume that the statutory defense of involuntary intoxication is unavailable in prosecutions for driving under the influence.

Whether Montana and Alaska law differ concerning the requirement of a voluntary act as a mecessary predicate for criminal liability

Simpson argues that, because Montana classifies driving under the influence as a crime of "absolute liability", there is no need for the government to prove that the defendant engaged in a voluntary act. Thus, under Simpson's interpretation of Montana law, a person might be held criminally responsible for being intoxicated and in control of a motor vehicle if, after the person passed out from drinking, the person's companions carried them to a parked vehicle and placed them behind the wheel.

But Montana's doctrine of "absolute liability" only exempts the government from proving the culpable mental states that might otherwise apply to the elements of the crime. The requirement of a voluntary act remains a separate component of liability for any erimi-nal offense. Both Montana law (Montana Statute 452-202) and Alaska law (AS 11.81.600(a)) declare that, aside from any culpable mental states that may apply to the elements of a particular crime, all crimes require proof that the offender engaged in a "voluntary act".

Our statute, AS 11.81.900(b)(62), defines "voluntary act" as "a bodily movement performed consciously as a result of effort and determination" or "the possession of property if the defendant was aware of the physical possession or control for a sufficient period to have been able to terminate it". Montana law approaches this issue from the other direction; it defines "involuntary act" rather than "voluntary act". But the result is similar, because Montana law defines "involuntary act" as "a bodily movement that ... is not a product of the effort or determination of the actor, either conscious or habitual." Montana Statute 45-2-101(82)(d).

Although the voluntariness of a defendant's conduct is rarely disputed, it remains an implicit element of all crimes. If volun-tariness is actively disputed, the government must prove it.

The Montana Supreme Court has recognized that the requirement of a voluntary act is distinct from the culpable mental states that may be required:

[TJhe minimum requirements of any criminal offense are ... a voluntary act and companion mental state. [Montana Statute] 45-2-202 ... provides that "[a] material element of every offense is a voluntary act ...."
This Court has not judicially recognized the automatism defensel, such as when] a defendant acts during convulsions, sleep, unconsciousness, hypnosis or seizures. [But our] criminal code's provisions requiring a voluntary act and defining involuntary conduct adequately provide for such defenses....

State v. Korell, 213 Mont. 316, 690 P.2d 992, 1001 (1984).

Simpson nevertheless argues that, under Montana law, a crime of "absolute liability" does not require proof of a voluntary act. He relies on the Montana Supreme Court's statement in State v. West, 252 Mont. 83, 826 P.2d 940 (1992), that the jury in a DUI case need not be instructed on the requirement of a "voluntary act".

But the Montana court's decision in West appears to confuse the requirement of a culpable mental state with the requirement of a voluntary act. Here is what the court said on this issue:

In State v. McDole [226 Mont. 169, 734 P.2d 683 (1987)] ... we held that "(driving under the influence is an absolute lability offense not requiring the proof of the mental state by the State." [Montana Statute] 61-8-401(7) ... states that "[albsolute la-bility as provided in 45-2-104 will be imposed for a violation of this section."
The basic reason for not requiring the state to prove mental intent in DUI cases is that:
[SHituations could arise in which defendants could not be convicted under the statute because they were too intoxicated to form the requisite intent. The paradoxical and absurd result would be that the more intoxicated the driver became the better his chances of avoiding liability under the statute.
McDole, 7834 P.2d at 686 (quoting Erwin, Defense of Drunk Driving Cases, § 1.05 (1986).
The [defendant's] proposed jury instruction required the State to prove the defendant knowingly committed the offense. Absolute liability statutes do not require proof of a mental state. We hold the District Court did not err in refusing the jury instruction defining a voluntary act.

West, 826 P.2d at 948-44.

© As can be seen, the Montana Court recites all the reasons why the government does not have to prove a culpable mental state in DUI cases, and then the court inexplicably concludes that the jury did not have to be instructed on the requirement of a voluntary act. But, as the Montana court recognized in Korell (discussed and quoted above), the requirement of a voluntary act is distinct from the culpable mental states that may be required by a specific criminal offense. The fact that Montana's DUI statute does not require proof of a culpable mental state does not lead to the conclusion that the offense is also exempted from the requirement of a voluntary act.

Thus, on this point as well, we find that Montana law provides no clear answer. Despite the Montana Supreme Court's statement in West, we are unwilling to assume that Montana law has dispensed with the requirement of a voluntary act as a necessary predicate for criminal liability under Montana's driving under the influence statute. The opposite appears more likely.

Conclusion: Whatever the arguable differences between the Montana statute and Alaska's DWI statute, they are still "similar"

We have discussed (at some length) the purported differences between the Montana offense of "driving under the influence" law and the Alaska offense of "driving while intoxicated". We are not sure that these purported differences exist. Moreover, we conclude that these purported differences are irrelevant to our decision of this case.

As we pointed out early in this opinion, AS 28.35.030(0)(4) does not require us to decide whether Montana law and Alaska law are identical; rather, the question is whether Montana's definition of driving under the influence is "similar" to Alaska's definition of driving while intoxicated.

It is conceivable that, in some instances, an involuntarily intoxicated driver would have a defense to DWI under Alaska law but would not have a defense under Montana law. But instances of involuntary intoxication are rare. Moreover, even in such instances, a defendant charged with DWI would probably have to assert, not only that they were involuntartly intoxicated, but also that they had no conscious awareness of being intoxicated before they decided to drive or assume control of a motor vehicle. (As noted above, there is no Alaska decision on this point, but the passage from Perkins & Boyce quoted above suggests that this is the applicable rule.)

Thus, any purported difference between Montana law and Alaska law would apply only to a narrow spectrum of unusual cases. As we pointed out in Borja v. State (a case which dealt with the related issue of whether an out-of-state conviction qualifies as a prior felony for purposes of Alaska's presumptive sentencing statutes), statutes can be "similar" even though they do not completely overlap in their coverage:

[Elven if it were possible to identify conduct that was clearly included. within the [other state's] offense and clearly excluded from the Alaska offense, this would not necessarily be fatal to [a finding of "similarity"]. AS 12.55.145(a)(2) does not require that the out-of-state offense be identical to an Alaska felony-only that its elements be "similar" to those of an Alaska felony. Implicit in this statutory wording is the possibility that there will be some acts covered by one statute that will not be covered by the other.

Borja, 886 P.2d 1311, 1314 (Alaska App.1994).

Applying this reasoning, we conclude that Montana's definition of driving under the influence is sufficiently similar to Alaska's definition of driving while intoxicated that a Montana conviction qualifies as a prior conviction under AS 28.35.080(0)(4). Thus, Simpson's Montana convictions for driving under the influence can be used as the predicate convictions needed to support a felony DWI charge in Alaska.

The decision of the superior court is REVERSED. The felony DWI charge against Simpson is reinstated, and this case is remanded to the superior court for further proceedings on that charge.

      . Since the time of Simpson's offense, the Alaska Legislature has amended AS 28.35.030(n). The offense of felony DWI now requires proof of two prior convictions within the preceding fer years. See SLA 2002, ch. 60, § 31. This amendment is not relevant to Simpson's case.

      . In September 2000 (the time of Simpson's alleged offense), the statute required a blood-alcohol level of 0.10 percent, rather than 0.08 percent, to trigger criminal liability. This difference is not pertinent to the issue raised in Simpson's appeal.

      . Morgan, 643 P.2d at 692; see also Hoople v. State, 985 P.2d 1004, 1006 (Alaska App.1999) ("[The offense of] driving while intoxicated ... does not require proof of any culpable mental state regarding the circumstance that makes the driving illegal (the fact that the driver was intoxicated or that the driver's blood-alcohol content exceeded [the legal limit] ).").

      . See Morgan, 643 P.2d at 692.

      . See Evans v. State, 645 P.2d 155, 159 (Alaska 1982) ("The case law is ... clear that involuntary intoxication ... constitute[s] a valid defense. This is most clearly shown when the intoxication is the result of the force, duress, fraud, or contrivances of another."); see also State v. Hazelwood, 946 P.2d 875, 879 (Alaska 1997) ("[Ilt is always a defense to prosecution that the conduct was not voluntary. In every case, the alleged [criminal conduct] must have been the product of a free willl.]").

      . Perkins & Boyce at 1005; LaFave & Scott at 558.

      . Montana Statute 61-8-401(7).

      . See AS 11.81.600(b); "A person is not guilty of an offense unless the person acts with a culpable mental state, except that no culpable mental state must be proved ... if the description of the offense does not specify a culpable*mental state and the offense is ... designated as one of 'strict Hability'L.]"

      . The constitutionality of this statute was upheld in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), reversing State v. Egelhoff, 272 Mont. 114, 900 P.2d 260, 264-66 (1995).

      . See State v. Kupihea, 98 Hawai'i 196, 46 P.3d 498, 504 n. 9 (2002) ("The voluntary nature of an act is part and parcel of the conduct element required to be proven by the prosecution.... [All criminal offenses] require[,] as a minimum basis for the imposition of penal liability, conduct which includes a voluntary act or voluntary omission."); Smith v. State, 56 SW.3d 739, 746 (Tex.App.2001) (the government must prove be-youd a reasonable doubt that the possessor of a controlled substance had control over the object long enough to allow them to comprehend that they possessed a controlled substance and to enable them to terminate their control over it); In re Marriage of Bartlett, 305 Ill.App.3d 28, 238 Ill.Dec. 357, 711 N.E.2d 460, 463 (1999) (in a prosecution for contempt of court, the government must prove beyond a reasonable doubt that the defendant performed a voluntary act and knew or reasonably should have known that the act contravened a court order).


text:
    2002 OK CR 29
    Leann CLARK, Petitioner, v. The Honorable Russell HALL, Special District Court Judge for Oklahoma County, Respondent.
    No. HB-2002-889.
    Court of Criminal Appeals of Oklahoma.
    July 24, 2002.
   ORDER

{1 Petitioner was arrested for the misdemeanor offense of Engaging/Offering to Engage in an act of Prostitution. Petitioner has been incarcerated in the Oklahoma County Jail since her arrest because she is unable to post the fifteen thousand dollar ($15,000.00) bail set by the trial court, as required by 22 § 1101.1. Petitioner's request for a reduction of bail was denied by the Honorable Russell Hall, Oklahoma County Special Judge, in an order filed July 15, 2002.

€ 2 Petitioner then filed a Petition for Writ of Habeas Corpus in this Court alleging 22 0.S$.S$upp.2002, § 1101.1 is unconstitutional because it deprives those in custody of the opportunity for an individualized determination to bail, violates the constitutional doe-trine of separation of powers, and is being used as punishment and not merely to ensure the presence of an accused at future proceedings. This Court declined to summarily grant the relief prayed for, but directed Respondent to respond and address whether Petitioner is entitled to the relief requested.

T3 Respondent asserts the Bail Reform Act was a recognition that society has a right, and in some cases a duty, to consider not only an accused's right to bail, but also to balance that right against a community's right to protect itself or individuals in the community. Respondent avers the Legislature has recognized that in crimes involving prostitution, minimum bail amounts and/or personal recognizance bonds do not serve to protect the interests of society or the neighborhoods plagued by this unlawful activity. Prior to the enactment of Section 1101.1, Respondent contends those arrested on prostitution charges posted minimal bail amounts and then returned to the neighborhood to reoffend. Respondent concludes Section 1101.1 was the Legislature's response to the "revolving door" and an attempt to reduce the futility and hopelessness felt by citizens outraged such conduct was continuing in their neighborhoods.

¶ 4 While we have no disagreement with Respondent's description of the nuisance of such conduct, such arguments are misplaced. As Respondent notes, the acts of engaging in prostitution and/or solicitation or procuring prostitution are criminal acts, punishable by not less than thirty (30) days in the county jail, nor more than one (1) year incarceration. See 21 O.S.2001, § 1031. Clearly, the proper way for the State of Oklahoma to combat such activity is to aggressively prosecute and incarcerate those who violate the laws. However, bail in Oklahoma is not, and cannot, serve as a eriminal punishment.

¶ 5 This Court has long observed, the "purpose of an appearance bond is to guarantee [the] accused will be available at such times as the court may direct, and since bond should never be used for the purpose of punishing the accused, the sole guide in fixing the amount thereof should be to cause an accused's appearance to answer to the charge against him." See Bowman v. State, 1978 OK CR 115, 116, 585 P.2d 1378. Further, in Brill v. Gurich, 1998 OK CR 49, ¶ 4, 965 P.2d 404, this Court observed that judges "must ensure bail is not used as a tool of punishment."

¶ 6 The obvious intent of the Legislature in enacting 22 O.8.S8upp.2002, § 1101.1, and as acknowledged by Respondent, is to punish individuals arrested on a finding of probable cause prostitution laws were violated. Section 1101.1 sets bail at a predetermined, nondiscretionary amount and disallows oral recognizance bonds under any circumstances. We FIND the statute is unconstitutional because it violates the due process rights of citizens of this State to an individualized determination to bail. See Okla. Const. Art. II, § 7.

¶ 7 Prior case law of this Court has specifically set the guidelines to be considered by judges of this State in determining the amount of bail, if any, to be set for an accused. See Petition of Humphrey, 1979 OK CR 97, 601 P.2d 103 and Brill v. Gurich, 1998 OK CR 49, 965 P.2d 404. Judges are given wide latitude in determining the amount of bail to be set. The only caveat imposed is the directive that the amount of an appearance bond should never be set at a high amount solely for the purpose of punishing an accused. Finally, while protection of the public is a factor that may be considered by judges in setting bail, such factor obviously has less significance in misdemeanor cases.

¶ 8 Because this Court has found 22 O.S.Supp.2002, § 1101.1 unconstitutional, Petitioner has demonstrated her current confinement is unlawful. See Rule 10.6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2002). Therefore, this matter is REMANDED to the District Court of Oklahoma County so that bail may be properly determined pursuant to the guidelines of Humphrey and Brill.

¶ 9 IT IS SO ORDERED.

¶ 10 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 24th day of July, 2002.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge (not participating)

/s/ Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBAR, Judge

      . Prior to April 19, 2002, bond for an alleged violation of Engaging/Offering to Engage in an act of Prostitution would have been set at $500.00, pursuant to an Oklahoma County Bail Schedule.