Opinion
Court of Appeals No. A-10969 Trial Court No. 1JU-10-1293 CR No. 6037
03-26-2014
GORDON ALAN VALLE, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, First Judicial District, Juneau, Keith B. Levy, Judge.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Gordon Alan Valle was convicted of violating a domestic violence protective order. On appeal, he claims that the district court should have dismissed his case because the protective order violated his constitutional right to keep and bear arms and because he was never informed of his right to appeal the order. For the reasons explained in this decision, we affirm the judgment of the district court.
AS 11.56.740(a)(1).
Background
Magistrate Judge John W. Sivertsen issued a long-term domestic violence protective order against Valle after finding that Valle had committed a crime of domestic violence against a woman he had dated. The order prohibited Valle from using or possessing a deadly weapon, including a firearm.
During the investigation of an unrelated case, Juneau police seized two firearms that were registered to Valle. Valle admitted he had allowed another man to use one of his firearms. Based on this evidence, the State charged Valle with violating the protective order.
Valle filed a motion to dismiss the charge, arguing his right to due process was violated because he was not notified that he could challenge the conditions of the protective order. He also argued that the order was unenforceable because it infringed his constitutional right to keep and bear arms.
District Court Judge Keith B. Levy denied the motion to dismiss, ruling that Valle was required to comply with the domestic violence protective order, "even if it [was] illegal, factually invalid, or issued in violation of [his] constitutional rights," unless the order was issued by a court that lacked personal or subject matter jurisdiction to issue it. Valle entered a Cooksey plea, preserving his right to raise these issues on appeal, and was then convicted of violating the protective order.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Why we conclude that the district court properly denied Valle's motion to dismiss
On appeal, Valle claims that the trial court should have granted his motion to dismiss. He renews his arguments that the protective order was unenforceable because it violated his constitutional right to keep and bear arms, and that his due process rights were violated because he was not advised of his right to appeal the order.
With regard to Valle's first claim — that the order was unenforceable because it violated his constitutional rights — the law is clear: "Where a court has proper jurisdiction, its orders must be obeyed. A person may be punished for criminal contempt for violating a court's orders even if those orders are later found invalid." Thus, in Jacko v. State, a case involving a domestic violence protective order, we held that "[e]ven though a court's restraining order or injunction may be factually unjustified ... the persons subject to that order must nevertheless obey it until the order is vacated or reversed through process of law." Likewise, we held in Weidner v. State that "a person is obliged to obey a restraining order — even an illegal one — until, through judicial process, the order is vacated or reversed."
Weidner v. State, 764 P.2d 717, 721 (Alaska App. 1988).
981 P.2d 1075 (Alaska App. 1999).
Id. at 1078.
Jacko, 981 P.2d at 1078 (discussing Weidner, 764 P.2d at 721).
Thus, if Valle believed the prohibition against using or possessing firearms was unconstitutional, his remedy was to seek relief from that prohibition through the judicial process; he was not entitled to simply ignore the prohibition.
Valle concedes this is the law, but he argues that it does not apply in his case because the district court did not have subject matter jurisdiction to issue the protective order. He contends that a court never has subject matter jurisdiction to issue an order that violates constitutional guarantees.
This argument misses the distinction between an order that is voidable because it violates a constitutional right and an order that is void on its face because the issuing court lacked jurisdiction over the party or the subject matter. Here, the magistrate judge had subject matter jurisdiction to issue the long-term protective order under AS 18.66.100 - .110, which authorizes the district court to issue domestic violence protective orders and prohibit respondents from possessing deadly weapons. Because the magistrate judge had personal jurisdiction over Valle and subject matter jurisdiction to issue the protective order, Valle was required to obey the order until it was vacated or reversed through process of law.
See McLaughlin v. State, 214 P.3d 386, 390-91 (Alaska App. 2009) (Mannheimer, J., concurring) (explaining that for purposes of Civil Rule 60(b)(4), a judgment is void only when the court was not properly constituted, or had no jurisdiction over the party or the subject matter, or when the party attacking the judgment was not given proper notice of the action or an opportunity to be heard, or when the court otherwise failed to comply with the basic requirements essential to the valid exercise of power by the court).
AS 18.66.100(c)(6); see also AS 22.15.100(9)(A) (authorizing magistrate judges to issue protective orders pursuant to AS 18.66.100 - .110).
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With regard to Valle's second claim — that he had no notice of his right to appeal the firearm prohibition in the protective order — we find no due process violation. Valle was notified that the protective order could be modified, and in fact he moved to modify the visitation provisions of the order. Therefore, even if Valle was entitled to affirmative notice of his right to appeal the conditions of the protective order (an issue we do not decide here), any error in the court's failure to provide that notice was harmless because Valle was aware of his right to move for modification of the order, and elected not to challenge the condition prohibiting him from using or possessing a deadly weapon.
Conclusion
We AFFIRM the judgment of the district court.