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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
| MICHAEL D. PHILLIPS, | ) |
| ) Court of Appeals No. A-10180 | |
| Appellant, | ) Trial Court No. 3CO-06-093 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2163 May 2, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Cordova, Eric A. Aarseth,
Judge.
Appearances: Paul A. Maslakowski, Assistant
Public Advocate, Palmer, and Rachel Levitt,
Acting Public Advocate, Anchorage, for the
Appellant. No appearance for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The superior court denied Michael D. Phillipss request
to exercise a late-filed peremptory challenge against Superior
Court Judge Eric A. Aarseth, the judge assigned to preside over
Phillipss trial. Phillips now seeks appellate review of the
superior courts decision.
Phillips has filed his appeal under Alaska Appellate
Rule 216. See Washington v. State, 755 P.2d 401, 403 (Alaska
App. 1988) (holding that an expedited appeal under Appellate Rule
216 is the sole way a criminal defendant may seek appellate
review of the denial of a peremptory challenge).
When the Appellate Court Clerks Office received
Phillipss notice of appeal, a question arose as to whether
Phillips was entitled to appeal the superior courts ruling at
this time since no final judgment has yet been issued in his
case.
Although Appellate Rule 216(a)(2) clearly states that
the expedited appellate procedures described in that rule apply
to [p]eremptory challenge appeals, subsection (c) of Rule 216,
entitled Jurisdictional Limitation, declares that Rule 216 does
not permit an appeal to be taken in any circumstances in which an
appeal would not be permitted by [Appellate] Rule 202. And
Appellate Rule 202(b) the portion of Rule 202 that governs
appeals to this Court declares that [a]n appeal may be taken
[only] from a final judgment entered by the superior court or the
district court.
Phillipss case has not yet gone to trial; no final
judgment has been issued in his case. Thus, Phillips is
apparently barred from pursuing an appeal under Appellate Rule
216 at this time.
See Muller v. State, 478 P.2d 822, 824 (Alaska 1971),
holding that the superior courts denial of the defendants motion
to dismiss the charges with prejudice did not terminate the
proceedings against [the defendants] and was in no sense a final
judgment of the type contemplated by [Supreme Court] Rule 6 the
predecessor to current Appellate Rule 202.
The jurisdictional limitation codified in Appellate
Rule 216(c) that is, the rule that no appeal can be pursued
under Rule 216 until the trial court has issued a final judgement
has been a part of Rule 216 since it was first promulgated in
1980. See Alaska Supreme Court Order No. 439 (effective November
15, 1980) (amending and re-codifying the Alaska Rules of
Appellate Procedure).
When Appellate Rule 216 was first promulgated, it
applied only to extradition appeals and juvenile waiver appeals.
Subsection (c) of the rule was intended to make sure that no
appeal could be taken until the superior court had issued its
final decision regarding whether to order a defendants
extradition to another state, or had issued its final decision
regarding whether to waive juvenile jurisdiction over a minor
(thus allowing the minor to be tried as an adult).
The denial of a defendants request to peremptorily
challenge the judge assigned to the defendants case is not a
final judgement. And, until 1981, the only way a defendant could
seek interlocutory review of such a denial was to file a petition
for review. In other words, a defendant whose peremptory
challenge was denied could ask this Court to review the matter,
but interlocutory review was discretionary, not mandatory. See
Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App. 1997): The
right of appeal means the right to require an appellate court to
review a lower courts decision. The right of petition, on the
other hand, means the right to request an appellate court to
review a lower courts decision a request which the appellate
court may grant or deny as it sees fit. (Emphasis in the
original.)
Then, in Morgan v. State, 635 P.2d 472 (Alaska 1981),
the Alaska Supreme Court concluded that, given the special nature
of the [judicial] disqualification right, it would be better if
appellate review of the denial of a peremptory challenge in a
criminal case were governed by the expedited procedures laid out
in Appellate Rule 216. Id. at 480 & n. 16. The following year
(1982), the supreme court amended Rule 216(a) to add peremptory
challenge appeals as defined in Rule 216(b)(2) to the list of
appeals governed by the rule. See Alaska Supreme Court Order No.
511 (effective August 18, 1982).
Based on the supreme courts decision in Morgan and the
courts ensuing issuance of Order No. 511, it is obvious that the
supreme court intended to allow defendants in criminal cases to
appeal the denial of a peremptory challenge even though the trial
court had not yet issued its final judgement. Indeed, Justice
Matthews dissented from the supreme courts decision to issue
Order No. 511 because he concluded that it was not prudent to
make an exception to the rule of finality to allow an appeal from
an order of this type. Id.
But even though the supreme court amended subsection
(a) of Rule 216 so that it now includes peremptory challenge
appeals, the supreme court made no conforming change to
subsection (c) the provision of Rule 216 that bars any appeal
unless the trial court has issued its final judgement.
True, subsection (a) of Rule 216 declares that the rule
supersedes the other appellate rules to the extent that they may
be inconsistent with this rule. But the problem here is an
inconsistency in the provisions of Rule 216 itself. Subsection
(a) of the rule allows a defendant to immediately appeal the
denial of a peremptory challenge, but subsection (c) of the rule
declares that Rule 216 does not allow appeals except as permitted
by Rule 202 i.e., unless the trial court has issued its final
judgement.
When different subsections of a statute or court rule
are seemingly inconsistent with each other, an appellate court is
obliged to construe the subsections so as to resolve the
inconsistency if that is possible. Anchorage v. Repasky, 34
P.3d 302, 315 (Alaska 2001). Here, it is not. Subsection (a) is
irreconcilably in conflict with subsection (c).
Nevertheless, from the history described above, it is
apparent that the supreme court intended to allow defendants to
immediately appeal the denial of a peremptory challenge
exempting these appeals from the normal rule that no appeal is
allowed until the trial court has issued its final judgement. We
therefore turn to another canon of statutory construction:
[I]f the literal import of the text of an act
is inconsistent with the legislative meaning
or intent, ... courts will ordinarily modify
the statute to comport with [that]
legislative intent.
State of Alaska v. Alaska Civil Liberties
Union, 978 P.2d 597, 613 n. 101 (Alaska 1999)
(quoting Norman J. Singer, Sutherland [on]
Statutory Construction 46.07 (5th ed.
1992)).
The wording of Appellate Rule
216(c) can not be reconciled with the supreme
courts clear intention to allow defendants to
immediately appeal the denial of a peremptory
challenge. Consequently, we now hold that
Appellate Rule 216(c) does not apply to
peremptory challenge appeals as defined in
Appellate Rule 216(b)(2).
Accordingly, Phillipss appeal is
accepted for filing.
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