                               STATE OF MINNESOTA

                                IN SUPREME COURT

                                      A14-1399

Court of Appeals                                                            Lillehaug, J.


State of Minnesota,

             Appellant,
vs.                                                              Filed: August 26, 2015
                                                              Office of Appellate Courts
Miranda Lynn Jones,
             Respondent.
                          _________________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota, for appellant.

Mark D. Nyvold, Special Assistant State Public Defender, Fridley, Minnesota, for
respondent.
                   _________________________________

                                   SYLLABUS
      A willful violation of a term of probation is not, standing alone, a violation of a

“mandate of a court” that subjects a probationer to criminal contempt under Minn. Stat.

§ 588.20, subd. 2(4) (2014).

      Affirmed.




                                           1
                                     OPINION
LILLEHAUG, Justice.

      Shortly after being placed on probation, appellant Miranda Lynn Jones was cited

for consumption of alcohol by a minor and disorderly conduct. Her conduct violated the

terms of Jones’s probation and the State moved to have it revoked. In addition, the State

cited Jones for misdemeanor contempt of court under Minn. Stat. § 588.20, subd. 2(4)

(2014).

      The probationer moved to dismiss the criminal contempt charge, arguing that the

statute charged does not cover violations of probationary terms.       The district court

granted the motion and the State appealed. In the meantime, Jones’s probation was

revoked and the sentence was executed. The court of appeals affirmed dismissal of the

contempt charge.

      Interpreting both the contempt and probation statutes, we hold that a willful

violation of a “term” of probation prescribed at sentencing does not itself constitute the

crime of violation of a “mandate of a court” under the criminal contempt statute.

Therefore, we affirm.

                                            I.

      In December 2013 Jones was convicted of a controlled-substance crime. The

district court stayed imposition of the sentence and placed Jones on supervised probation

with terms that included refraining from using alcohol and remaining law-abiding.




                                            2
       Five months later, Jones was cited for consumption of alcohol by a minor,

disorderly conduct, and criminal contempt of court. The State moved quickly (and

successfully) to revoke her probation.

       Jones then moved the district court to dismiss the criminal contempt charge,

brought under Minn. Stat. § 588.20, subd. 2(4) (2014), which states that “[e]very person

who commits . . . willful disobedience to the lawful process or other mandate of a court”

is guilty of a misdemeanor. Jones asserted that she could not be charged by the State

with criminal contempt merely for violating a term of probation. Jones first argued that

the power to issue a contempt charge stems from the inherent power of the judiciary, and

that the power does not allow police to issue citations. Jones also argued that a probation

term is an agreement, not a court mandate, and is thus outside the authority of the

criminal contempt statute. The State opposed the motion to dismiss, arguing that the

plain language of section 588.20, subdivision 2(4), authorizes the prosecution of a

criminal contempt charge against a probationer for violation of a probationary term.

       The district court granted Jones’s motion to dismiss. The court distinguished

orders—those directing an individual to do or refrain from doing a specific act—from

conditional orders—those setting forth specific consequences for a violation. The court

concluded that probationary terms were conditional orders, not “mandates” of the court.

       The State appealed, and the court of appeals affirmed. See State v. Jones, 857

N.W.2d 550, 553 (Minn. App. 2014). Unlike the district court, the court acknowledged

that a probation violation may violate a “mandate” of the court. Id. at 557. Nonetheless,

the court reasoned that “probation violations do not fit within the overall purpose of


                                            3
section 588.20 to punish deliberate disruptions of court proceedings and intentional acts

of disrespect to the legal process.” Id. The court further reasoned that the contempt

power is “inherently a judicial function,” and that the power is an “extraordinary remedy

intended to enforce the authority of the court and preserve the legal process.” Id. The

court criticized “the prosecution’s practice of routinely bringing contempt-of-court

charges for alleged probation violations,” characterizing it as not “necessary to vindicate

the judiciary’s authority or to preserve the legal process.” Id. The court concluded that

section 588.20 does not give to prosecutors “the necessary statutory authorization to

charge probation violators with contempt.” Id. at 558.

                                            II.

       This case requires us to determine and clarify the relationship between the statutes

governing the imposition and revocation of probation, Minn. Stat. §§ 609.135, 609.14

(2014), and one of Minnesota’s two criminal contempt statutes, Minn. Stat. § 588.20

(2014). The resolution of the issue presented requires statutory interpretation, a question

of law subject to de novo review. Barrow v. State, 862 N.W.2d 686, 689 (Minn. 2015).

       Our probation statutes create an alternative to confinement following a criminal

conviction. Probation, which is defined in Minn. Stat. § 609.02, subd. 15 (2014), is a

“court-ordered sanction . . . imposed as an alternative to confinement or in conjunction

with confinement or intermediate sanctions.” Id. Probation is imposed in connection

with a stay of imposition or execution of the sentence “on the terms the court prescribes.”

Minn. Stat. § 609.135, subd. 1. If a probationer violates the terms of probation, section

609.14 provides that “the court may without notice revoke the stay and direct that the


                                            4
defendant be taken into immediate custody.” Minn. Stat. § 609.14, subd. 1(a). If grounds

are found for revocation, subject to the limitations of State v. Austin, 295 N.W.2d 246

(Minn. 1980), the court may do any of the following: continue the stay on the same or

further terms, impose intermediate sanctions, or revoke the stay and impose or order the

execution of the sentence. Minn. Stat. § 609.135; see also Minn. R. Crim. P. 27.04, subd.

3 (providing that, when the court has found or the probationer has admitted a probation

violation, the court may continue probation, impose a sentence, or execute a sentence). If

revocation is not ordered, “the defendant shall be restored to liberty under the previous

order of the court.” Minn. Stat. § 609.14, subd. 4.

       Chapter 588 contains Minnesota’s contempt statutes. There are two kinds of

criminal contempt in chapter 588:      one encompassed by sections 588.01-.15 that is

punishable at the discretion of the judiciary, and the other in section 588.20 that is

“prosecutable by the state like any other crime.” State v. Tatum, 556 N.W.2d 541, 546

(Minn. 1996). In this case, the probationer was charged with violating the latter—

specifically section 588.20, subdivision 2(4), a misdemeanor, which prohibits “willful

disobedience to the lawful process or other mandate of a court.” The question of first

impression presented in this case is whether a “term” of probation, standing alone, is an

“other mandate of a court,” the willful violation of which constitutes a new crime of

criminal contempt prosecutable by the State.

       In interpreting both the probation and contempt statutes, our object is “to ascertain

and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2014). “When the

words of a law in their application to an existing situation are clear and free from all


                                             5
ambiguity,” we apply the letter of the law. Id. But “[w]hen the words of a law are not

explicit,” we apply the canons of construction. See id.

                                            A.

      We start with “mandate,” a rare word in Minnesota law, at least in the context of a

court proceeding.1 “Mandate” is not defined in chapter 588, chapter 609, or elsewhere in

the Minnesota Statutes. In the context of judicial proceedings, “mandate” has several

different definitions. It may be an order from an appellate court to a lower court. See

Mandate, Black’s Law Dictionary (8th ed. 2004). Or it may be a command to an officer

of the court to enforce a court order. See id. Or it may be a synonym for a court order

directing a person to do or not do something. See The American Heritage Dictionary of

the English Language 1066 (5th ed. 2011) (defining “mandate”); id. at 420 (defining

“court order”); see also State v. McCormick, 273 N.W.2d 624, 627 (Minn. 1978) (stating

that “[a] defendant who wrongfully detains or secretes his own child within the

boundaries of Minnesota in violation of a court order can . . . be found in criminal

contempt of court and punished for a misdemeanor under Minn. St. 588.20(4) [sic]”).

      In this case, we need not decide the scope of the word “mandate.” For the purpose

of this decision, it is enough to assume, arguendo, that as used in section 588.20, the

word includes a court order commanding compliance with a direction of the court. We

then turn to the more specific question:        whether willful violation of a “term” of


1
       Other than section 588.20, the current Minnesota Statutes contain only one use of
“mandate” in the context of a court proceeding. See Minn. Stat. § 192A.64-65 (2014)
(regarding military courts issuing “any process or mandate”).


                                            6
probation itself constitutes willful disobedience of a court order commanding

compliance, thereby giving prosecutors the authority not only to seek revocation of the

probation, but to bring a new charge: criminal contempt.

                                             B.

       On whether a probation “term” itself constitutes a “mandate,” the violation of

which is punishable as a criminal contempt, the words of the relevant statutes are not

explicit. There are two reasonable interpretations of whether a “term” of probation, as

used in the probation statutes, is a “mandate,” as used in the criminal contempt statute.

       The State’s interpretation, that a “term” of probation is part of a court order and

thus the violation of such a term is a violation of the order, is reasonable. In felony and

gross misdemeanor cases (such as Jones’s controlled substance conviction) a sentence is

imposed by a “Sentencing Order” that must include the “precise terms of sentence.”

Minn. R. Crim. P. 27.03, subds. 4(A), 7. A sentencing order’s “precise terms” include

“whether the defendant is placed on probation and if so, the terms and conditions of

probation.” Minn. R. Crim. P. 27.03, subd. 7(3)(a)(iii). A term of probation, therefore, is

necessarily found within a court order.

       Moreover, as a matter of common usage, we recognize that our district courts

often use the word “order” when prescribing terms of probation, such as: “While you are

on probation, the court orders that you remain sober and stay out of liquor stores.”

Section 609.135 itself uses the word “order” twice in connection with conditions of

probation: ordering payment of restitution, Minn. Stat. § 609.135, subd. 1a, and ordering

a defendant to undergo treatment, Minn. Stat. § 609.135, subd. 1c. And, obviously, when


                                             7
one violates a term of probation, one does something contrary to the sentencing court’s

direction.

       But there is another reasonable interpretation: that a “term” of probation is not

itself a “mandate,” or court order, so a violation of such term is not a violation of a

mandate. The probation statutes use the word “term,” not “mandate” or “court order,”

and the district court “prescribes” rather than “orders” the terms. Section 609.135 refers

to a condition of probation as an “order” only in the specific circumstances of restitution

and treatment, which are not at issue here.

       Nowhere in the comprehensive probation statutes is there any suggestion that

violation of a probation term is, by itself, a contempt of court. Compare Iowa Code

§ 908.11(4) (2014) (expressly providing that a violator of probation may be held in

contempt of court). The three consequences of probation revocation are described in

section 609.14, subdivision 1:     revocation of probation and imposition of sentence,

intermediate sanctions, or further probation. Section 609.14 does not contain any explicit

or implicit reference to criminal contempt as a consequence. To the contrary, it instructs

that, if the grounds do not exist for revocation, the probationer is to be “restored to

liberty” under the previous sentencing order. Id., subd. 4.2



2
        By contrast, in other situations where the Legislature has detailed the
consequences for the violation of a court order, it has provided express guidance on
whether contempt may be one such consequence. See, e.g., Minn. Stat. § 260C.405,
subd. 3 (2014) (order for protection); Minn. Stat. § 518A.71 (2014) (child support and
maintenance orders); Minn. Stat. § 609.748, subd. 6(h) (2014) (harassment restraining
order).


                                              8
       Thus, there are two reasonable interpretations of whether a “term” of probation is

a “mandate.” Because the words of the criminal contempt and probation statutes, read

together, are “susceptible to more than one reasonable interpretation,” ambiguity exists

that requires consideration of “the canons of statutory construction to ascertain” their

meaning. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013).

                                             C.

       Upon careful consideration, we conclude that the second interpretation is more

reasonable: a term of probation is not a court mandate, the violation of which subjects

the probationer to a new criminal contempt charge. While both interpretations have

textual support, it is telling that the comprehensive probation statutes do not provide, or

even hint, that a willful violation of a “term” of probation constitutes criminal contempt.

       Besides the text, three other considerations influence our decision.

       First, by declining to interpret every willful violation of a term of probation as a

separate criminal contempt, we avoid a separation-of-powers problem. It is black-letter

law that “if we can construe a statute to avoid a constitutional confrontation, we are to do

so.” In re Civil Commitment of Giem, 742 N.W.2d 422, 429 (Minn. 2007). We do so

here to avoid a conflict between the executive and the judiciary, in two related respects.

       The object of the contempt statutes is to vindicate the authority of the court.3 See

Tatum, 556 N.W.2d at 544; see also Zieman v. Zieman, 265 Minn. 190, 193 n.5, 121


3
       The State argues that this purpose of contempt relates only to judicial criminal
contempt, Minn. Stat. §§ 588.01-.15 (2014), not misdemeanor criminal contempt under
section 588.20. While the two types of criminal contempt are indeed “philosophically
                                                    (Footnote continued on next page.)

                                             9
N.W.2d 77, 80 (1963) (stating that the purpose of a criminal contempt proceeding is the

“punish[ment of] an individual because of his demonstrated disrespect for the court’s

orders”).   Under the State’s reading, a district court could decide that a probation

violation, even if willful, did not undermine the authority of the court. But the county

attorney could still charge criminal contempt, even in the face of the district court’s

determination that the probationer had not demonstrated any disrespect.

       Not only would the State’s interpretation obviate the basic purpose of contempt, it

would impinge on the district court’s obligation and authority to sentence. While subject

to reversal for abuse of discretion, district courts have considerable room to impose,

modify, and revoke probation. See State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000);

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980); see also State v. Cottew, 746

N.W.2d 632, 638 (Minn. 2008).       Probation is to be used to “deter further criminal

behavior, punish the offender, help provide reparation to crime victims and their

communities, and provide offenders with opportunities for rehabilitation.” Minn. Stat.

§ 609.02, subd. 15 (2014).

       Our case law is clear that a violation of a term of probation does not inevitably

require revocation; instead, “revocation should be used only as a last resort,” and the

court must balance “the probationer’s interest in freedom and the state’s interest in

insuring his rehabilitation and the public safety.” Austin, 295 N.W.2d at 250. The State’s


(Footnote continued from previous page.)
segregated,” Tatum, 556 N.W.2d at 546, they are both criminal contempt with a common
purpose: to vindicate the authority of the court.


                                           10
interpretation would essentially allow the prosecutor to use criminal contempt as a tool to

seek an enhancement of the sentence for the underlying crime.

       The separation of powers concerns are illustrated by the facts of this case. By her

conduct, Jones violated the terms of her probation. In response, the district court revoked

the probation and executed the sentence, but did not punish the probation violation as a

criminal contempt under sections 588.01-.15 or refer Jones for prosecution under section

588.20.      Nevertheless, the prosecutor charged and continues to pursue criminal

contempt.4

       Second, the history of the relevant statutes casts doubt on the idea that a “term” of

probation is a “mandate.”       The Legislature passed paragraph (4) of the original

misdemeanor contempt statute—“[w]ilful disobedience to the lawful process or other

mandate of a court”—no later than 1888. See Minn. Gen. Stat. § 122(4) (1879-1888). It

is unlikely that it intended that a violation of a term of probation would be a violation of a

“mandate of a court,” as the earliest probation system did not exist in Minnesota until 11

years later, and then only for juveniles. See Act of Apr. 11, 1899, ch. 154, 1899 Minn.

Laws 157 (codified at Minn. Rev. Laws §§ 5496-5503 (1905)).

       Adult probation began in this state in 1909. See Act of Apr. 22, 1909, ch. 391,

1909 Minn. Laws 465, 465-66 (codified at Minn. Rev. Laws §§ 4776-4777 (Supp.


4
       We do not doubt that, when a probationer violates a term of probation by an act
that constitutes a separate crime, the probationer may be charged for the new offense.
This is entirely consistent with our system of separation of powers. Our holding here is
limited: the probationer’s violation of a term of probation does not itself constitute the
offense of criminal contempt under section 588.20, subdivision 2(4).


                                             11
1909)). The original statute assumed that the sentence would be imposed and would then

be stayed, subject to the defendant’s “good behavior,” upon “such terms and conditions

of probation as are deemed suitable.” Minn. Rev. Laws §§ 4776(1)-(2) (1909). Notably,

the statute, passed only 21 years after the misdemeanor criminal contempt statute, did not

employ the word “mandate” or “order,” but instead used the phrase “terms and

conditions.” Upon violation, said the original statute, “the court shall have the power, in

the exercise of its discretion, to revoke the order staying sentence . . . in which case the

sentence theretofore imposed shall be executed in all respects as though no proceedings

under this act has been taken.” Minn. Rev. Laws § 4776(3) (Supp. 1909). In other

words, under the original statutory scheme, the sentence would be imposed and stayed

upon “suitable” terms, and upon violation of the terms, the sentence stayed would be

executed in the court’s “discretion.” This flexible scheme did not seem to contemplate

that a violation of a term of probation, standing alone, would constitute a separate

criminal offense.

       Finally, while we are interpreting and clarifying the relationship between

particular Minnesota statutes governing criminal contempt and probation, we note that

most courts that have considered the issue have concluded that a violation of a term of

probation is not a contempt of court.5 For example, in State v. Letasky, 152 P.3d 1288


5
       See Alfred v. State, 758 P.2d 130, 132 (Alaska Ct. App. 1988) (“[T]he sanction for
violation of a condition of probation is revocation of probation.”); People v. Johnson, 24
Cal. Rptr. 628, 632 (Cal. Ct. App. 1993) (“The ramifications of a violation of a condition
of probation are stated by the court and established by statute, i.e., that probation may be
revoked.”); Jones v. United States, 560 A.2d 513, 516-17 (D.C. 1989) (“The availability
                                                        (Footnote continued on next page.)

                                            12
(Mont. 2007), the Montana Supreme Court considered a criminal contempt statute similar

to ours, which prohibited “purposely disobeying or refusing any lawful process or other

mandate of the court . . . .” Id. at 1290 (emphasis added). The court held that a condition

imposed in connection with a suspended sentence was “not an independent mandate of

the court.” Id. The court was influenced by the fact that (as is true here) the probation

statute did not list criminal contempt as a consequence for violation of a probation

condition. Id. at 1291.6




(Footnote continued from previous page.)
of revocation of probation accompanied by imposition of the original sentence or a
portion of that sentence provides the court with ample power to vindicate its authority
should a probationer violate a condition of probation.”); State v. Asuncion, 205 P.3d 577,
592 (Haw. Ct. App. 2009) (“When a sentencing court withholds a sentence of
imprisonment and instead sentences a convicted defendant to a term of probation, the
probation is subject to certain mandatory and discretionary conditions that are reasonably
necessary to assist the defendant in leading a law-abiding life. When the defendant fails
to comply with those conditions, [the statute] provides the exclusive remedies for
sanctioning the defendant’s failure.”); Williams v. State, 528 A.2d 507, 510 (Md. Ct.
Spec. App. 1987) (“[A] condition of probation may be enforced only through the power
to revoke the probation, not through contempt proceedings.”); State v. Hancock, 934
A.2d 551, 555 (N.H. 2007) (“[T]he trial court’s discretion is limited to the authority it has
been given by [statute]. The legislature has not afforded trial courts discretion to punish a
probation violation with contempt.”); State v. Williams, 560 A.2d 100, 104 (N.J. Ct. App.
1989) (“Contempt of court should not be superimposed as an additional remedy in a
probation violation setting if the act that occasions the violation itself is not otherwise
criminal.”). But see United States v. McCarty, 82 F.3d 943, 948 (10th Cir. 1996); People
v. Gallinger, 548 N.E.2d 78, 80 (Ill. App. Ct. 1989); State v. Walton, 170 P.3d 1122,
1124 (Or. Ct. App. 2007).
6
       Because other canons resolve the statutory ambiguity in Jones’s favor, it is not
necessary for us to reach the issue of whether and when to invoke the rule of lenity. See
State v. Nelson, 842 N.W.2d 433, 443-44 (Minn. 2014); id. at 454-55 (Lillehaug, J.,
dissenting).


                                             13
                                           III.

       Thus, as between two reasonable interpretations, we hold that willful violation of a

term of probation does not itself constitute a violation of a “mandate of a court” under

Minn. Stat. § 588.20, subd. 2(4).

       Affirmed.




                                            14
