In re McNally

901 P.2d 415, 1995 Alas. LEXIS 89, 1995 WL 495805
CourtAlaska Supreme Court
DecidedAugust 18, 1995
DocketNo. S-6009
StatusPublished

This text of 901 P.2d 415 (In re McNally) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McNally, 901 P.2d 415, 1995 Alas. LEXIS 89, 1995 WL 495805 (Ala. 1995).

Opinions

RABINOWITZ, Justice.

I. INTRODUCTION

The District Attorney of Anchorage, Edward McNally, appealed the superior court’s imposition of monetary sanctions against him in the amount of $300. The sanctions were imposed pursuant to Civil Rule 95 for McNally’s failure to either appear personally or to have an assistant appear on his behalf at a calendar call held in Kenai in connection with two separate Seward criminal cases.1 The court of appeals affirmed the superior court’s imposition of sanctions. McNally then filed a petition for hearing from the court of appeals’ judgment. This court subsequently granted the petition for hearing.

Essentially, for the reasons stated and analysis applied by the court of appeals, we affirm the court of appeals’ disposition.2

II. FACTUAL BACKGROUND AND PROCEEDINGS

The essential facts as set forth in the court of appeals’ memorandum opinion are as follows:

Effective August 1, 1992, the Criminal Division of the Attorney General’s office in Juneau shifted responsibility for prosecuting Seward criminal cases from the Kenai District Attorney’s office to the Anchorage District Attorney’s office. The Anchorage District Attorney’s office assigned the Seward cases to Assistant District Attorney Ethan Berkowitz. Evidently no one in the Anchorage District Attorney’s office arranged for the Kenai District Attorney’s office to coordinate with it concerning the scheduling of pending Seward cases. Similarly, no one in the Anchorage District Attorney’s office formally notified the trial courts in Kenai — through which the Seward cases are handled — of the transfer of responsibility.
Judge Cranston scheduled a trial call in Kenai in various pending cases, including two Seward cases — State v. Wheeler, 3KN-S92-738CR, and State v. Knight, 3KN-S92-630CR, — for September 3, 1992. Calendaring orders in Wheeler and Knight were sent to the Kenai District Attorney’s office, whose attorneys had previously appeared in connection with the cases. On [417]*417September 2, 1992, the Kenai District Attorney’s office received a copy of Judge Cranston’s September 3 calendar, which listed Wheeler and Knight as scheduled for trial call at 2:30 p.m.; the calendar was not sent to Anchorage.
That same day, September 2, Ethan Berkowitz spoke by telephone with Seward Court personnel and asked if there were any upcoming matters he should know about. Berkowitz was told that there were none. Later that day, Berkowitz spoke by telephone with Judge Cranston’s secretary about motions for continuances that had been filed in two pending Seward cases, one of which was Wheeler. Berkowitz asked for a fax of the motions paperwork; he also asked Judge Cranston’s secretary to forward him a copy of the forthcoming Seward calendar. (The record does not disclose precisely when eases were calen-, dared to be heard in Seward.)
No mention of the trial call in Kenai was made during Berkowitz’ telephone conversation with Judge Cranston’s secretary. That afternoon, Berkowitz’ office received the faxes Berkowitz had requested from her. The continuance paperwork in Wheeler was accompanied by a memorandum from Judge Cranston’s secretary indicating “this is set for 9/3/92 trial call. Please call me today if you oppose or non-oppose.” Berkowitz was occupied with other matters when the faxes arrived in Anchorage. A secretary placed them in his “in basket,” but they were soon covered by other incoming documents and Berkow-itz did not see them before the end of the following business day — after the time for trial call in Wheeler and Knight had already come and gone.
At the trial call hearing in Kenai, a representative of the Kenai District Attorney’s office was present to handle Kenai cases, but no one appeared in connection with the Seward matters. When Judge Cranston called the Seward cases, the assistant district attorney from Kenai informed the judge that the matters were being handled out of the Anchorage office. After efforts to reach an attorney in the Anchorage District Attorney’s office by telephone from the courtroom proved fruitless, Judge Cranston issued an order requiring District Attorney McNally to appear and show cause why monetary sanctions should not be imposed against him for failing to appear for the trial calls in Wheeler and Knight.
Following a hearing on the issue of sanctions, Judge Cranston found, in relevant part, that “Mr. McNally’s mismanagement of case assignments caused the failure of an attorney to appear for the September 3, 1992 calendar call.” The judge imposed a fine of $150 against McNally in each ease for failing to appear.

McNally v. Superior Court, Mem.Op. & J. No. 2770, at 1-4 (Alaska App., September 22, 1993).

III. DISCUSSION

A McNally’s Challenges to the Superior Court’s Findings of Fact

It is against this factual background that District Attorney McNally challenged several of the superior court’s predicate findings of fact relating to notice, which furnished the underlying basis for the imposition of its sanctions orders. McNally also challenged several of the superior court’s conclusions of law. As indicated at the outset, we are in agreement with and adopt both the court of appeals’ analysis and disposition of the issues McNally raised before that court.

We now turn to McNally’s contentions regarding the superior court’s findings of fact. McNally’s contention that the Anchorage District Attorney’s office did not receive either fax or telephonic notice of the September 3 trial calendar call hearings is without merit. As the court of appeals correctly concluded, the record shows that

faxed communication concerning Wheeler, however, clearly disclosed that that case was set for trial call the following day. Faxed notice was thus given as to one of the two cases.

Id. at 4.

More significantly, the court of appeals further concluded that the record established that the superior court’s calendaring orders, as well as a copy of the court’s September 3 [418]*418calendar, were distributed to the Kenai District Attorney’s office. Based on the foregoing, the court of appeals properly held that:

This distribution amounted to full and sufficient notice on the state of the scheduled hearings, since Kenai prosecutors had previously appeared in connection with the cases and the Kenai trial court clerk’s office had never been formally notified of the transfer of responsibility to Anchorage.

Id. at 5.

Finally, as to the adequacy of notice issue raised by McNally, the court of appeals came to the conclusion that any lack of faxed or telephonic notice to Anchorage was wholly unnecessary to support the superior court’s “core” conclusion that the “Anchorage District Attorney’s office’s failure to appear was basically unexeused.” Id. More specifically, the court of appeals held that

the Anchorage District Attorney’s office’s failure to be aware of the hearings

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901 P.2d 415, 1995 Alas. LEXIS 89, 1995 WL 495805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcnally-alaska-1995.