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Black v. State (8/29/2003) ap-1896
Black v. State (8/29/2003) ap-1896
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HERMAN J. BLACK, )
) Court of Appeals No. A-
8613
Appellant, ) Trial
Court No. 3VA-03-64 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1896 - August 29, 2003]
)
Appeal from the District Court, Third Judi
cial District, Valdez, Joel Bolger, Judge.
Appearances: Tim Cook, Anchorage, for
Appellant. Richard K. Payne, Assistant
District Attorney, and Roman J. Kalytiak,
District Attorney, Palmer, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge
Herman J. Black is charged with driving under the
influence of an alcoholic beverage.1 Prior to trial, he
attempted to peremptorily challenge District Court Judge Joel
Bolger.2 Judge Bolger denied the challenge, finding that it was
untimely. Black appeals, claiming that his challenge was timely
because he placed it in the mail within the five-day period set
out in Criminal Rule 25(d)(2).3 We agree with Judge Bolger that
a challenge is not filed when it is mailed but only when it is
received. We therefore affirm his decision that the challenge
was untimely.
Black also argues that under Criminal Rule 53, Judge
Bolger should have relaxed the five-day filing period. But
because Black presented no evidence to support his claim that
Judge Bolger should relax the filing period under Rule 53, we
find no error. Accordingly, we affirm Judge Bolgers denial of
Blacks peremptory challenge.
Discussion
Blacks appeal raises the following question: When is a
pleading filed in a trial court? Black argues that a pleading is
filed when it is mailed to the court. The State disagrees,
arguing that a pleading is filed when it is received by the clerk
of the appropriate trial court. As explained here, we agree with
the State for two reasons.
First, the States position is supported by the Alaska
Supreme Courts decision in Silides v. Thomas,4 a case involving
an election law filing requirement. There, the supreme court
rejected an argument similar to Blacks.
In Silides, a disqualified election candidate claimed,
among other things, that he had complied with AS 15.13.060(c),
which required that [e]ach candidate shall file the name and
address of the campaign treasurer with the [Alaska Public
Offices] [C]ommission no later than seven days after the date of
filing his declaration of candidacy or his nominating petition.5
The disqualified candidate argued that he had complied with this
statute because his campaign treasurer had, within the seven-day
period, telephoned the Anchorage office of the Alaska Public
Offices Commission and informed the Commission that he was
serving as treasurer for the candidates election campaign.6
The supreme court disagreed:
The definition of file is well established in
the law. It has been consistently held that
a document is filed only when the proper
office has received it, and that it is not
considered filed when it is deposited in the
mails. Given the text of AS 15.13.060(c),
the legal meaning of the term file and our
adoption of the doctrine that statutory
election deadlines are to be strictly
enforced, ... [the] telephone conversation
cannot be deemed an appropriate filing within
the intendment of AS 15.13.060(c).[7]
Although Silides involved an election law statute that
the court strictly construed, the cases Silides relied on to
support its conclusion that mailing is not filing cover a variety
of circumstances. For instance, Blades v. United States8
involved a request for reclassification mailed to the Selective
Service Board. There, the court ruled that the request was not
filed upon mailing: Although the regulations are not explicit on
this point, we hold that a document has not been filed with or
returned to a local board until it has been actually received by
it. Mere mailing is not enough.9
Similarly, in United States v. Easement and
Right-of-Way,10 a condemnation case, the court held that a land
owners exception challenging the amount of his compensation was
not timely: Defendants contention that mailing of an exception
constitutes filing is ... without merit. The act of depositing
the exception in the mail is not a filing. A filing takes place
only when the Clerk acquires custody.11
Likewise, in Wirtz v. Hod Carriers Local 169,12 a case
involving a labor union election, the court said: The use of the
word file or filing in a legal sense is almost universally held
to mean the delivery of the paper or document in question to the
proper office and its receipt by him to be kept on file. A
document is not filed when it is deposited in the mails and the
risk of loss or delay in transit is on the sender.13
In each of these cases, a person was required to file a
document with a government office by a specified deadline. In
each case, the court rejected the claim that the document was
timely filed if it was mailed before the deadline holding
instead that filing refers to the receipt of the document.
Based on these cases, we conclude that the Silides
holding is not limited to Alaskas election laws in Title 15.
Rather, Silides declares a common-law rule of general
application: the rule that a document is filed when it is
received by the pertinent court or office.
In this appeal, Black relies on Alaska Appellate Rule
502(d), which states that, for papers filed in the appellate
courts of this state, [t]he date of mailing ... will be deemed to
be the date of filing. Appellate Rule 502(d) alters the common-
law rule defining when a pleading is deemed filed. But Rule
502(d) applies only to pleadings that must be filed in the
appellate courts. There is no corresponding civil or criminal
rule that codifies a similar deviation from the common law for
pleadings that must be filed in the trial courts of this state.
Thus, pleadings in the superior court and the district court are
still governed by the common-law rule that a document is filed
when it is received by the court, not when it is mailed.
Under Criminal Rule 25(d)(2), Blacks peremptory
challenge of Judge Bolger had to be filed by May 15th (that is,
within five days after notice that the case [had] been assigned
to Judge Bolger for trial). Blacks attorney mailed the
peremptory challenge to the district court on May 15th, but it
was not received until May 19th. Judge Bolger correctly ruled
that the challenge was filed on May 19th and that, accordingly,
the challenge was untimely.14
Black next argues that Judge Bolger should have
considered the peremptory challenge timely under Criminal Rule
53, which allows a judge to relax the criminal rules in any case
where it shall be manifest to the court that a strict adherence
to them will work injustice. In his motion below, Black
cursorily requested that the Court, in its discretion, grant the
Defendants Motion for a Change of Judge. Even had Judge Bolger
interpreted this as a request under Rule 53 to relax Rule
25(d)(2)s five-day period, Black was not entitled to the relief
he sought. While Criminal Rule 53 allowed Judge Bolger to relax
the time limits of Criminal Rule 25(d) to avoid injustice,15
Black still had the burden of presenting evidence to support his
claim that the filing period should have been relaxed because he
had to file his challenge by mail.16 Black, however, presented
no evidence to support his claim. Based on this record, we
conclude that no error occurred.
Conclusion
The district courts decision is AFFIRMED.
_______________________________
1 AS 28.35.030(a).
2 See Alaska R. Crim. P. 25(d) & AS 22.20.022.
3 Alaska Appellate Rule 216 provides for an expedited
peremptory challenge appeal when a judge denies a criminal
defendants motion for a change of judge under Criminal Rule
25(d).
4 559 P.2d 80 (Alaska 1977).
5 Id. at 88 & 84 n.7.
6 Id. at 87-88.
7 Id. at 88 (internal citation omitted).
8 407 F.2d 1397 (9th Cir. 1969).
9 Id. at 1399.
10 386 F.2d 769 (6th Cir. 1967).
11 Id. at 771.
12 246 F. Supp. 741 (D. Nev. 1965).
13 Id. at 750 (citation omitted).
14 See Criminal Rule 25(d)(4).
15 Cf. Riley v. State, 608 P.2d 27, 29-30 (Alaska 1980)
(holding that the district court abused its discretion by not
relaxing Criminal Rule 25 where the defendants showed that they
were unable to consult with an attorney to determine whether to
exercise a peremptory challenge).
16 Cf. Washington v. State, 755 P.2d 401, 404 (Alaska
App. 1988) (holding that the superior court did not abuse its
discretion in declining to relax the time limit in Criminal Rule
25(d)(2) where the defendant failed to show that he was late in
receiving notice of the judges appointment or that his counsel
acted promptly to challenge the appointment).
