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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| I. J., | ) |
| ) Court of Appeals No. A-10125 | |
| Petitioner, | ) Trial Court No. 3DI-05-008 DL |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) No. 2162 May 2, 2008 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Dillingham, Fred
Torrisi, Judge.
Appearances: Leslie N. Dickson, Assistant
Public Advocate, and Joshua Fink, Public
Advocate, Anchorage, for the Petitioner.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
In July 2007, the State filed a juvenile delinquency
petition against the minor, I. J., alleging fourth-degree
controlled substance misconduct (a class C felony).1
I. J. did not file a request for a jury trial, so the
case was scheduled for a bench trial on October 11th.
On the eve of trial, the Public Defender Agency (which
had been representing I. J.) withdrew because of a conflict of
interest arising from its representation of a co-participant in
the drug transaction. The superior court appointed the Office of
Public Advocacy to be I. J.s attorney. The court also
rescheduled I. J.s trial for the week of October 23rd apparently
despite knowledge that this was the week of a statewide training
conference held jointly by the Public Defender Agency and the
Office of Public Advocacy.
The Office of Public Advocacy received notice of its
appointment on October 15th. The assistant public advocate
assigned to I. J.s case filed an emergency motion to continue the
trial. Because of the attorneys unavailability, the court
continued I. J.s trial to the week of November 20th.
The Office of Public Advocacy received its first (and
apparently only partial) discovery in I. J.s case on either
October 30th or November 2nd. Two weeks later, at the calendar
call held on November 16th, the court informed I. J.s assistant
public advocate that the case was currently scheduled for a bench
trial but that she (i.e., the assistant public advocate) could
ask for a jury trial by filing the appropriate motion.
Seven days later, on November 23rd, I. J.s attorney
filed a written request for a jury trial. The court then denied
this request on the basis that it was untimely under Delinquency
Rule 21(a).
Delinquency Rule 21(a) declares that a minors request
for jury trial in a delinquency proceeding must be filed within
10 days of the minors arraignment on the delinquency petition, or
within 10 days of the time the minor enters a denial to the
petition, whichever date is later. The childrens master who
denied I. J.s request for a jury trial explained his decision as
follows:
[The minor] has been arraigned four
times[,] and denials were entered [at] the
arraignment[s]. The most recent arraignment
and denial occurred on August 3, 2007. No
request for a jury trial, either oral or
written, was made until November 16, 2007,
more than three months after the deadline set
forth in Rule 21 ... .
The minor has been represented by
counsel since January 29, 2007. He offers no
justifiable reason for the delay in
requesting a jury trial or any justification
for relaxing the rule. 4
Fn 4: At the November 16, 2007
calendar call [I. J.s] new attorney
suggested that[,] because she is new,
the ten-day period in which to request a
jury trial should begin anew. She
offered no authority for this theory[,]
and [she] appears to have abandoned it
in the written request for jury trial
... . Moreover, the oral (and first)
request for jury trial occurred at the
November 16 hearing, more than a month
after [the attorney] entered her
appearance.
(Emphasis in the original.)
After receiving this ruling from
the childrens master, I. J.s attorney sought
relief from the superior court. When the
superior court affirmed the masters ruling,
I. J. petitioned this Court to review this
matter. We stayed the delinquency
proceedings in the superior court until we
issued a decision in this matter.
Since that time, I. J. turned
eighteen, and the State dismissed the
underlying charge. Nevertheless, because of
the importance of the issue raised in this
case, and because the briefing of this issue
was already complete and a draft decision had
already been approved by this Court when the
underlying charge was dismissed, we have
decided to issue an opinion to resolve this
issue for future cases.
We reverse the superior courts
decision for the reasons that follow.
The Alaska Constitution guarantees
minors the right to trial by jury in
delinquency proceedings if the delinquency
petition is based on allegations of criminal
conduct that, if committed by an adult, could
result in incarceration. R.L.R. v. State,
487 P.2d 27, 33 (Alaska 1971). In his
petition for review to this Court, I. J.
asserts that Alaska Delinquency Rule 21(a) is
unconstitutional because it authorizes the
superior court to deny a minors right to jury
trial simply on the basis of the minors
inaction (i.e., the minors failure to make a
request within the 10-day period specified by
the rule), rather than requiring the court to
personally address the minor and obtain a
knowing and intelligent waiver of the right
to trial by jury the kind of waiver that
would be required in a criminal case.2
In its response, the State argues
that Delinquency Rule 21(a) is
constitutional, but the State also contends
that the real issue in this case is how
strictly Delinquency Rule 21(a) should be
applied. The State notes that the trial
prosecutor did not oppose I. J.s request for
a jury trial, and the State forthrightly
concedes that it would suffer no prejudice if
I. J.s request for a jury trial were now
honored. The State concludes its response
with the following sentence: Because of the
importance of the right to a jury trial and
the apparent absence of prejudice to either
the [S]tate or the trial court from I. J.s
late demand [for a jury trial], the [S]tate
takes no position on [I. J.s] petition for
review (aside from its argument that
Delinquency Rule 21(a) is, indeed,
constitutional).
In arguing that Delinquency Rule
21(a) is unconstitutional, I. J. faces an
uphill battle. Under federal constitutional
law, a minor has no right to a jury trial in
delinquency proceedings. McKeiver v.
Pennsylvania, 403 U.S. 528, 545; 91 S.Ct.
1976, 1986; 29 L.Ed.2d 647 (1971). The right
to jury trial exists only because of our
supreme courts interpretation of the Alaska
Constitution in the R.L.R. decision. And in
R.L.R., the supreme court explained at length
why the court believed that a minors right to
jury trial in delinquency proceedings should
be regulated in a manner equivalent to a
civil litigants right to jury trial under
Alaska Civil Rule 38. R.L.R., 487 P.2d at 33-
35.
Civil Rule 38(a) declares: The
right of trial by jury [in civil cases] as
declared by section 16 of article I of the
[Alaska] constitution ... shall be preserved
to the parties inviolate. But despite this
apparent confirmation of the important nature
of the right to jury trial in civil cases,
Civil Rule 38 goes on to declare that this
right can be waived by inaction:
(b) Demand. Any party may demand a
trial by jury of any issue triable of right
by a jury by serving upon the other parties a
demand therefor in writing at any time after
the commencement of the action and not later
than 10 days after the service of the last
pleading directed to such issue. Such demand
shall be made in a separate written document
signed by the party making the demand or by
the partys attorney.
. . .
(d) Waiver. The failure of a party to
serve a demand as required by this rule and
to file it as required by Rule 5(d)
constitutes a waiver by the party of trial by
jury. ...
In Patrick v. Sedwick, 391 P.2d 453
(Alaska 1964), our supreme court upheld the
constitutionality of Civil Rule 38(d) the
portion of Rule 38 which states that a partys
failure to file a timely request for a jury
trial constitutes a waiver of that right.
Here is the courts discussion of this point:
As a final point, the plaintiff charges
that she was denied her constitutional right
to a trial by jury. The first time that the
plaintiff requested a jury trial in this case
seems to have been at the pretrial
conference. This conference was held off the
record and apparently not until many months
after the last pleading had been served. ...
Article I, section 16 of the Alaska
Constitution provides that [i]n civil cases
where the amount in controversy exceeds two
hundred fifty dollars, the right of trial by
a jury of twelve is preserved to the same
extent as it existed at common law. [But in]
certain provisions of [Civil Rule] 38, this
right to trial by jury has been regulated in
the following manner:
(b) Demand. Any party may
demand a trial by jury of any issue
triable of right by a jury by
serving upon the other parties a
demand therefor in writing at any
time after the commencement of the
action and not later than 10 days
after the service of the last
pleading directed to such issue.
Such demand shall be made in a
separate written document signed by
the party making the demand or by
his attorney.
. . .
(d) Waiver. The failure of a
party to serve a demand as required
by this rule and to file it as
required by Rule 5(d) constitutes a
waiver by him of trial by jury.
...
Under the quoted provisions of the rule,
the plaintiff [could be] denied her
constitutional right to trial by jury ... if
she failed to proceed in accordance with the
rule. That is exactly what occurred in this
case: she failed to file, within ten days
after service of the last pleading, a written
demand for trial by jury, as required by the
rule. In fact, the record does not reveal
that she ever filed the requisite written
demand.
The provisions quoted from the rule are
not unconstitutional unless they amount to an
unreasonable regulation of the manner of
exercising the right to trial by jury in
civil cases. Both the United States Supreme
Court and state appellate courts have decided
that provisions such as those contained in
[Civil Rule] 38(b) and (d) are
constitutional. [Citations omitted] We are
in accord with those decisions. 14
Fn 14: For Professor Moores
discussion on the constitutionality of
Rule 38(d) of the Federal Rules of
Procedure, which is identical with our
[Civil Rule] 38(d), see 5 Moore, Federal
Practice, para. 38.43 (2d ed. 1951).
Patrick, 391 P.2d at 459-460.
Our supreme courts decisions in
R.L.R. and Patrick both strongly suggest that
Delinquency Rule 21(a) is constitutional.
However, we need not resolve this
issue for we conclude that, even when we
presume the constitutionality of Delinquency
Rule 21(a), the superior court abused its
discretion when it denied I. J.s request for
a jury trial.
As explained above, the supreme
court held in R.L.R. that the right to jury
trial in delinquency proceedings should be
regulated in the same manner that Civil
Rule 38 regulates the constitutional right to
jury trial in civil cases. The courts
decision in R.L.R. is the basis for
Delinquency Rule 21(a) which, like Civil
Rule 38, imposes a 10-day time limit for
requesting a jury trial, and which declares
that the case will be tried by a judge if the
minor fails to make a timely request for a
jury.
But the Civil Rules contain another
provision Civil Rule 39 that is a sibling
provision to Civil Rule 38. This rule reads:
(b) [Trial by] the Court. Issues not
demanded for trial by jury as provided in
Rule 38 shall be tried by the court; but
notwithstanding the failure of a party to
demand a jury ..., the court in its
discretion upon motion may order a trial by a
jury of any or all issues.
The supreme court has acknowledged
that this rule gives a trial judge the
authority to grant a civil litigants request
for a jury trial even though that request is
untimely under Civil Rule 38. Patrick, 391
P.2d at 460.
In a later case, Hollembaek v.
Alaska Rural Rehabilitation Corp., 447 P.2d
67 (Alaska 1968), Justice Jay Rabinowitz (as
a single member of the court) expressed his
views concerning how a trial judge should
exercise the discretion afforded by Civil
Rule 39(b). Justice Rabinowitz concluded,
based on the following factors, that it was
an abuse of discretion for the trial judge to
deny a litigants untimely request for jury
trial:
(1) the litigant filed a written
demand for a jury trial within ten days
after the last pleading directed to the
issue [on which jury trial was
requested];
(2) [t]he demand for jury trial was
filed some eight months prior to the
time the trial actually took place in
other words, granting the request would
pose no problem for the courts
scheduling and administrative handling
of the case;
(3) the litigants attorney declared
that his earlier act of seemingly
acquiescing in a bench trial by signing
off on written pre-trial order that
provided for a bench trial had been
inadvertent; and
(4) the record demonstrated that
the opposing party would suffer no
prejudice on account of the late request
for a jury trial that, in fact, the
other party was willing to stipulate to
the granting of a jury trial.
Hollembaek, 447 P.2d at 69-70.
Although Delinquency Rule 21(a) is
modeled on Civil Rule 38, the Delinquency
Rules do not contain a provision modeled on
Civil Rule 39(b). However, another provision
of the Delinquency Rules Delinquency Rule
1(f) allows the superior court to turn to
the Civil Rules in situations where the
Delinquency Rules do not prescribe a
governing procedure:
(f) Situations Not Covered by These
Rules. If these rules do not prescribe a
specific procedure, the court may proceed in
any lawful manner, including application of
the Civil or Criminal Rules, applicable
statutes, the Alaska and United States
Constitutions or the common law. Such a
procedure may not be inconsistent with these
rules and may not unduly delay or otherwise
interfere with the unique character and
purpose of delinquency proceedings.
Civil Rule 39(b) is not
inconsistent with the time limits and waiver
by inaction provisions of Civil Rule 38. In
fact, the two rules are sibling provisions.
Civil Rule 39(b) is expressly designed to
give a judge the discretion to grant a late
request for a jury trial even though the
parties, by failing to meet the 10-day
deadline of Civil Rule 38, have previously
waived their right to jury trial.
As explained above, and as shown by
the supreme courts decision in R.L.R.,
Delinquency Rule 21(a) is modeled on Civil
Rule 38. Because Civil Rule 39(b) is
consistent with Civil Rule 38, we conclude
that Civil Rule 39(b) is likewise consistent
with Delinquency Rule 21(a).
Accordingly, pursuant to
Delinquency Rule 1(f), the childrens master
and the superior court should have applied
Civil Rule 39(b) when assessing whether to
grant or deny I. J.s untimely request for a
jury trial.
Although the Alaska Supreme Court
has never issued a decision expressly
defining the criteria that a court should use
when deciding whether to grant a late-filed
request for jury trial under Rule 39(b), we
believe that Justice Rabinowitzs approach in
Hollembaek provides a good framework for this
analysis.
As explained above, Justice
Rabinowitz cited four factors to support his
conclusion that the trial court abused its
discretion when it denied the late request
for a jury trial in Hollembaek: (1) the fact
that the request, although untimely under
Rule 38, was nevertheless reasonably prompt
given the litigation history of the case; (2)
the fact that the request was made long
enough in advance of the trial that granting
the request would not pose a problem for the
courts scheduling and administrative handling
of the case; (3) there was reasonable
justification for not holding the litigant to
the litigants earlier acquiescence in a non-
jury trial; and (4) the record demonstrated
that the opposing party would suffer no
prejudice on account of the late request for
a jury trial.
Analyzing the facts of I. J.s case
in light of these four criteria, we conclude
that I. J.s request for a jury trial should
have been granted. As explained above,
I. J.s original attorney (the Public Defender
Agency) was forced to withdraw because of a
conflict. The Office of Public Advocacy was
appointed on October 12, 2007, but the Office
did not learn of its appointment until
October 15th and did not begin to receive
copies of the States discovery in the case
until two weeks later. Moreover, on November
16, at the Offices first court appearance for
I. J., the childrens master informed the
Office that, although the case was currently
scheduled for a bench trial, the Office could
file a written request for a jury trial
which the Office did on November 23.
For reasons unrelated to the
litigation of this jury trial issue, the
court delayed I. J.s trial until February.
Thus, it does not appear that the request was
made so close to the time of trial as to
cause problems for the courts scheduling and
administration of the case.
And finally, as explained above,
the State did not oppose I. J.s request for a
jury trial, and the State now expressly
declares (in its pleading to this Court) that
the granting of the request for a jury trial
would not have prejudiced its prosecution of
this case.
For these reasons, we conclude that
it was an abuse of discretion for the
superior court to deny I. J.s late-filed
request for a jury trial. The decision of
the superior court is REVERSED.
COATS, Chief Judge, concurring.
Although the majority opinion
reaches the correct result in this case I.J.
is entitled to a jury trial the majority
opinion appears to set a very high bar for a
juvenile who files an untimely request for a
jury trial. I believe that the strict
application of Delinquency Rule 21(a) could
result in juveniles being deprived of their
right to a jury trial. I am quite confident
that the Alaska Supreme Court, a court that
has been in the forefront of protecting the
rights of Alaskans, would not require this
result.
In R.L.R. v. State,1 the Alaska
Supreme Court held that whenever a child in a
delinquency proceeding was charged with acts
that would be a crime subject to
incarceration if committed by an adult, the
juvenile was guaranteed the right to a jury
trial by the Alaska Constitution.2
I.J. argues that, like an adult, he
was entitled to a jury trial unless he
knowingly and voluntarily waived that right.
But, as the State points out, that is not
what the Alaska Supreme Court held in R.L.R.
In R.L.R., the supreme court held that after
first consulting with his counsel and his
parents or guardian, the juvenile had to
affirmatively assert the right to a trial by
jury.3 The court found that the childrens
rules in effect at that time incorporated a
civil rule that required a person who wanted
to have a jury trial to make the request not
later than 10 days after the service of the
last pleading directed to such issue.4
Currently, Delinquency Rule 21(a) provides
that [t]he juvenile must request a jury trial
within 10 days of the arraignment on petition
or when entering a deny plea, whichever is
later. The trial court relied on this rule
in denying I.J.s request for a jury trial
because the request was untimely.
The trial courts ruling is
consistent with Delinquency Rule 21(a).
Delinquency Rule 21(a) finds support in the
R.L.R. decision. Still, I.J. has a
substantial argument that he should not lose
his constitutional right to a jury trial
merely because it was untimely. He argues
that Delinquency Rule 21(a) is
unconstitutional.
As the State recognizes in its
memorandum addressing I.J.s petition, the
real issue in this case is how strictly
Delinquency Rule 21(a) should be applied.
The State then points out that neither the
State nor the trial court appear to have been
prejudiced by I.J.s late demand for a jury
trial. The State concludes its memorandum by
stating, [b]ecause of the importance of the
right to a jury trial and the apparent
absence of prejudice to either the [S]tate or
the trial court from I.J.s late demand, the
[S]tate takes no position on his petition for
review. The State therefore recognizes the
importance of the juveniles right to a jury
trial and advances no argument for a strict
construction of Delinquency Rule 21(a).
As I have previously stated, I am
confident that the Alaska Supreme Court would
be protective of a juveniles constitutional
right to a jury trial. I am therefore
confident that the supreme court would
liberally construe Delinquency Rule 21(a) to
protect that right. Certainly in
circumstances such as the case before us
where the State and the court are not
prejudiced by a request for a jury trial, the
supreme court would relax the rule. Given
the Alaska Supreme Courts history of
protecting Alaskans constitutional rights and
the importance of a juveniles right to a jury
trial, I would predict that the supreme court
would allow a trial judge to deny a juveniles
right to a jury trial only for a good and
substantial reason.
_______________________________
1 See AS 11.71.040(a)(2) and (d).
2See Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978).
1487 P.2d 27 (Alaska 1971).
2Id. at 32-33.
3Id. at 35.
4Id. at 35 & n.48.
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