Swarner v. State

118 P.3d 24, 2005 Alas. App. LEXIS 83, 2005 WL 1846509

• Court: Court of Appeals of Alaska
• Decided: August 5, 2005
• Docket: No. A-9281
• Status: Published

Opinions

OPINION

STEWART, Judge.

The Governor of Montana asked the Governor of Alaska to issue a warrant for the arrest and extradition of Kevin T. Swarner to face felony charges in Montana. After the Governor of Alaska issued the warrant, Swarner filed a petition for a writ of habeas corpus in the superior court to contest his extradition. Superior Court Judge Charles K. Cranston denied Swarner’s petition and ordered that Swarner be held for the Montana authorities. Swarner appeals. Because we agree that Montana’s request is in proper form, we affirm the superior court.

Background facts and proceedings

On February 22, 2005, police arrested Swarner near Kenai under AS 12.70.120 for being a fugitive from justice. An arrest warrant for Swarner had been issued by the Gallatin County District Court in Montana on a three-count information charging two counts of criminal distribution of dangerous drugs and one count of criminal possession with intent to distribute.¹ The information was based on an affidavit of probable cause from a Gallatin County deputy county attorney that was sworn to before a notary public.

The Governor of Montana delivered a timely demand to Alaska’s Governor for Swarner’s extradition. On April 7, 2005, Governor Frank H. Murkowski issued a governor’s warrant for Swarner’s arrest and delivery to the Montana authorities. Swarner then filed the petition for a writ of habeas corpus in superior court that Judge Cranston denied.

Discussion

In this appeal, Swarner renews two claims that he advanced in the superior court. First, Swarner claims that an affidavit sworn to before a notary public is not sufficient to support his extradition. Swar-ner contends that AS 12.70.020 requires that an affidavit supporting probable cause must be sworn to before a judicial officer.

Alaska Statute 12.70.020(a)(2) specifies three possible methods for a demanding state to support an extradition request: (1) with an indictment; (2) with an “information supported by affidavit”; or (3) with “a complaint, affidavit, or other equivalent accusation made before a magistrate!)]” As we noted above, Swarner claims that the Montana documents are flawed because the deputy county attorney’s affidavit is not sworn to before a magistrate. But Swarner misreads the requirements of the statute.

We addressed this same claim in Evans v. State.2, Evans also attacked an extradition request from Montana by claiming that an affidavit supporting an information had to be sworn to before a magistrate. Evans contended that an affidavit sworn to before a notary public did not meet the requirements of AS 12.70.020(a)(2).³

We rejected Evans’s claim. We ruled that the three possible methods for supporting an extradition request were specified disjunctively in AS 12.70.020(a)(2).⁴ Thus, we .concluded that the requirement of the third alternative — that an “affidavit” be “made before a magistrate” — did not apply to an affidavit that supported an information.⁵ Evans answers Swarner’s claim. Under AS 12.70.020(a)(2), an affidavit that supports an information need not be executed before a magistrate.

Next, Swarner contends that Evans overlooked 18 U.S.C. § 3182. That statute provides that the executive authority of any state can demand the extradition of a fugitive found in another state when the demanding state “produces a copy of an indictment found or an affidavit made before a magis-tratef.]”⁶ Swarner contends that this statute requires that any affidavit supporting an extradition request be executed before a magistrate. Arguing that this federal statute preempts Alaska law, Swarner contends that Evans is wrongly decided, and that the affidavit from the Gallatin County prosecutor in this case does not meet the requirements of 18 U.S.C. § 3182.

But Swarner’s argument does not find support in case law. For example, in Application of Hanson,7 the court rejected a claim that an extradition request based on an information supported by an affidavit executed before a notary public was insufficient under federal law.⁸ The court reasoned that the provision of 18 U.S.C. § 3182 that provided for extradition when a demanding state “produces a copy of an indictment found or an affidavit made before a magistrate” specified those circumstances when an asylum state must extradite, but did not bar a state from establishing less exacting terms for the extradition of fugitives than specified in federal law.⁹ The court specifically held that an affidavit supporting an information did not have to be executed before a magistrate.¹⁰ And in Salazar v. Eads,11 the Seventh Circuit Court of Appeals ruled that, on its face, the Indiana Uniform Criminal Extradition Act did not conflict with 18 U.S.C. § 3182 or the federal constitution.¹²

The Alaska Supreme Court follows this same view. In Moser v. Zaborac13 the Alaska Supreme Court recognized that federal law has not totally preempted the area of extradition to the exclusion of the states. The court recognized that state regulation of extradition is permitted and noted that this view was universally accepted.¹⁴ And in Montague v. Smedley15 the court recognized that the federal extradition statute had not preempted the field of extradition:

[T]he reasonable assumption is that by the omission to extend the statute to the full limits of constitutional power it must have been intended to leave the subjects unprovided for not beyond the pale of all law, but subject to the power which then controlled them, — state authority until it was deemed essential by further legislation to govern them exclusively by national authority. In fact, such conclusion is essential to give effect to the act of Congress . [¹⁶]

We reject Swarner’s claim that 18 U.S.C. § 3182 preempts state law and requires that, for purposes of an extradition request, an affidavit supporting an information must be executed before a magistrate.

Conclusion

The superior court properly denied Swar-ner’s petition for writ of habeas corpus. The judgment of the superior court is AFFIRMED.

1 . Montana Statutes 45-9-101 & 45-9-103, respectively.

2 . 820 P.2d 1098 (Alaska App.1991).

3 . Evans, 820 P.2d at 1100.

4 . Id.

⁵

6 . 18 U.S.C. § 3182 (2000).

7 . 103 Idaho 609, 651 P.2d 543 (App.1982).

8 . Hanson, 651 P.2d at 545.

9 . Id. See also Innes v. Tobin, 240 U.S. 127, 133— 35, 36 S.Ct. 290, 292, 60 L.Ed. 562 (1916); Glover v. State, 257 Ark. 241, 515 S.W.2d 641, 643 (1974); Application of Morgan, 244 Cal.App.2d 903, 53 Cal.Rptr. 642, 647 (1966); People ex rel. Dimas v. Shimp, 83 Ill.App.3d 150, 38 Ill.Dec. 519, 403 N.E.2d 750, 752 (1980); In re Austin, 186 Neb. 815, 186 N.W.2d 723, 726 (1971); State ex rel. Sieloff v. Golz, 80 Wis.2d 225, 258 N.W.2d 700, 703-04 (1977).

10 . Hanson, 651 P.2d at 546. See also Ex parte Davis, 68 Cal.App.2d 798, 158 P.2d 36, 38-40 (1945); Stark v. Livermore, 3 N.J.Super. 94, 65 A.2d 625, 627 (App.1949).

11 . 466 F.2d 765 (7th Cir.1972).

12 . Salazar, 466 F.2d at 766-67.

13 . 514 P.2d 12 (Alaska 1973).

14 . Moser, 514 P.2d at 13 n. 3.

15 . 557 P.2d 774 (Alaska 1976).

16 . Montague, 557 P.2d at 776-77 (quoting Innes, 240 U.S. at 134-35, 36 S.Ct. at 292).