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opinion is published in the Pacific Reporter. Readers
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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ANDREW J. DAYTON, | ) |
| ) Court of Appeals No. A-9422 | |
| Appellant, | ) Trial Court No. 4FA-02-2886 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2206 January 16, 2009 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: Daniel Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Stewart, Senior Court of Appeals
Judge.*
[Bolger, Judge, not participating.]
MANNHEIMER, Judge.
This case requires us to clarify the limits on a judges
discretion to dismiss litigation when the plaintiff fails to
adhere to pleading deadlines. As we explain in more detail
below, the superior court struck Daytons amended petition for
post-conviction relief, and then dismissed his underlying lawsuit
for post-conviction relief, because the amended petition was
filed almost six months after the deadline set by the court.
However, the amended petition was filed and it was filed before
the superior court took any action to enforce the deadline. In
addition, the State never alleged that its ability to respond to
Daytons claims for post-conviction relief was defeated or even
hampered by the lateness of Daytons amended petition. Under
these circumstances, the tardiness of the petition was not a
proper basis for the superior court to dismiss Daytons post-
conviction relief action.
Underlying facts
Andrew J. Dayton was convicted of first-
degree sexual assault and first-degree burglary. We
affirmed Daytons convictions in Dayton v. State, 89
P.3d 806 (Alaska App. 2004).
In December 2002, while Daytons appeal was
pending, he filed a pro se petition for post-conviction
relief. In response, the State moved to dismiss
Daytons petition for failure to state a prima facie
case for relief. Subsequently, Dayton obtained counsel
to assist him in the post-conviction relief litigation,
and Superior Court Judge pro tempore Jane F. Kauvar
granted Daytons attorneys request to stay further post-
conviction relief proceedings until this Court resolved
Daytons pending appeal.
In late April 2004, this Court issued our
decision in Daytons appeal, leading to renewed activity
in Daytons post-conviction relief litigation. On
September 1, 2004, Judge Kauvar gave Daytons attorney
sixty days until November 1, 20042 to file a
supplemental petition and additional materials in
support of Daytons claim for post-conviction relief.
On January 3, 2005 (two months past the
deadline), Daytons attorney filed an affidavit from
Daytons trial counsel, Bill Murphree. Then, on April
25, 2005 (almost six months past the deadline), Daytons
attorney filed an amended petition for post-conviction
relief.
Three weeks later, on June 13, 2005, the
State filed a motion asking Judge Kauvar to strike
Daytons amended petition on two grounds: because it
was filed late, and because it contained claims for
relief that were not addressed in the trial counsels
affidavit.
On July 27, 2005, Judge Kauvar issued an
order granting the States motion to strike Daytons
amended petition for post-conviction relief. However,
Judge Kauvar did not specify the basis for her order.
That is, she did not say whether she had decided to
strike the amended petition because it was filed late,
or because it contained claims that were not addressed
in the trial attorneys affidavit, or both or for some
other reason.
But eight months later, at a hearing held on
March 2, 2006 to sort out the question of who would
represent Dayton in this appeal, Judge Kauvar indicated
that she struck the amended petition because Daytons
attorney was so tardy in filing it. The judge
declared:
The Court: [T]he Court ... tried many
times, [made] many phone calls starting in
March of 05 to see if Mr. Rice [i.e., Daytons
post-conviction relief attorney] was going to
respond to [the] States [motion] to dismiss
the [petition]. Each time, we were told
[that] Mr. Rice was working on it. [The]
Court felt she had to do something, and the
post-conviction relief [petition] was
dismissed.
Judge Kauvars explanation of her
action apparently came as a surprise to
Daytons attorney. And when, at a subsequent
representation hearing, the attorney
expressed his surprise, Judge Kauvar
reiterated that she had dismissed the amended
petition because it was filed tardily:
Mr. Rice: I was confus[ed as to] why
the Court dismissed [the amended post-
conviction relief application]. Mr. Dayton
filed a [pro se] petition; the D.A. opposed,
[and then] I filed an amended petition [and]
an affidavit from [Mr.] Murphree [Daytons
trial attorney]. ...
. . .
[And] when this court issued the order
dismissing the petition for post-conviction
relief, I was of the opinion [that] the Court
issued [that order] on the merits, rather
than for want of prosecution.
The Court: Our office called you almost
weekly to [get you to] respond. ... [I]
tried to get something from you to support
[Daytons petition]. ... It is not correct
[that] you didnt know we were trying to get a
response. It went on for quite a while.
In summary, even though Judge
Kauvars written order did not explain her
reason for striking Daytons amended petition,
Judge Kauvar subsequently declared (twice)
that she took this action because the amended
petition was filed late.
Why it was improper for the superior court to strike
Daytons amended petition for post-conviction relief
On appeal, the State concedes that the
superior court should not have struck Daytons amended
petition for post-conviction relief. However, the
State bases its concession of error on an erroneous
interpretation of the law.
The State contends that, under this Courts
decision in Howarth v. State, 13 P.3d 754 (Alaska App.
2000), it would have been proper for the superior court
to strike Daytons amended petition if Dayton had been
represented by a lawyer appointed at public expense.
However, the State takes the position that Howarth does
not apply to Daytons case because Dayton had a
privately retained lawyer.
In Howarth, the defendant had a court-
appointed post-conviction relief attorney who was
notified that the post-conviction relief action would
be dismissed unless the attorney filed an amended
petition. Despite this warning, the attorney never
filed an amended petition or responded in any other
fashion to the proposed dismissal.3 In the States
brief to this Court in Howarth, the State took the
position that, even in such circumstances, the superior
court had no power to dismiss the post-conviction
relief action. We disagreed:
We agree with the State that the
superior court should not have dismissed
Howarths petition [given the facts of this
case], but we are hesitant to fully adopt the
States position that a trial court is
powerless to dismiss a petition for
post-conviction relief until the petitioners
attorney [performs one of the actions listed
in Criminal] Rule 35.1(e). We believe that a
court might properly dismiss a petition for
post-conviction relief if both the petitioner
and the petitioners attorney obstinately
refuse to comply with Rule 35.1(e).
Howarth, 13 P.3d at 756 (with the citations
to the rule corrected to reflect the current
pertinent subsections of the rule).
Based on this passage from Howarth,
the State now concludes that the superior
court has the authority to dismiss a petition
for post-conviction relief based on the
defendants attorneys failure to prosecute the
action, but only if two conditions are
satisfied: (1) the defendants attorney must
have been appointed to represent the
defendant at public expense, and (2) the
attorney must obstinately refuse to file an
amended petition or otherwise respond to the
proposed dismissal of the case.
Turning to the facts of Daytons
case, the State asserts that Daytons attorney
obstinately refused to file an amended
petition because the attorney did not file
the amended petition until months after the
deadline. Nevertheless, the State suggests
that the superior court may have lacked the
authority to dismiss Daytons post-conviction
relief action because Daytons attorney was
privately retained.
The States position is premised on
a misreading of Howarth and a
misunderstanding of the phrase obstinately
refuse. Daytons case is indeed distinguish
able from the circumstances presented in
Howarth but not because of who was paying
for Daytons attorney. Rather, Daytons case
is different because Daytons attorney (unlike
Howarths attorney) did not obstinately refuse
to respond to a proposed dismissal of the
post-conviction relief action.
Daytons attorney may have had no
good excuse for his delay in filing the
amended petition for post-conviction relief,
but Daytons attorney ultimately did file the
amended petition, and he filed it while the
case was still pending (i.e., before Judge
Kauvar took any action to enforce the
previously established deadline). This is
the critical distinction between Daytons case
and the facts of Howarth: Judge Kauvar
dismissed Daytons case, not because Daytons
attorney failed to file an amended petition,
but as a penalty for filing the amended
petition late.
Because dismissal was used as a
penalty for a late filing, Daytons case is
governed by the Alaska Supreme Courts
decision in Metcalf v. Felec Services, 938
P.2d 1023 (Alaska 1997).
Metcalf was pursuing a workers
compensation claim. After receiving an
adverse decision from the Workers
Compensation Board, Metcalf appealed the
Boards decision to the superior court.
Metcalf filed his brief on appeal, but he did
not file it on time and, because of this
tardiness, the superior court dismissed
Metcalfs appeal.
The supreme court held that the
superior court acted improperly when it
dismissed Metcalfs appeal based on Metcalfs
failure to file his brief within the time
limit specified by the superior court. The
supreme court reached this conclusion because
(1) Metcalf did, in fact, file the brief, and
(2) there was no showing that the tardiness
of Metcalfs brief prejudiced his opponents
ability to defend the appeal:
Even though Metcalf unquestionably
failed to timely file [his] brief [by the
deadline specified in the courts] order, the
superior court had actually received the
brief more than two weeks before it entered
the dismissal order. ... We also note that
Felec Services [i.e., Metcalfs employer] and
Cigna Insurance Companies [the employers
insurer] made no showing [in their motions to
dismiss] that they would be prejudiced by the
filing delay. For example, [the] appellees
did not demonstrate that the delay would
hamper their ability to controvert Metcalfs
claim on its merits.
Metcalf, 938 P.2d at 1025.
The supreme court acknowledged that
there might be circumstances where litigation-
ending sanctions might be justified because
of a litigants egregious misconduct, if
lesser sanctions were affirmatively found to
be inadequate. But the supreme court
concluded that Metcalfs case did not present
those circumstances:
Given that [Metcalfs] brief had already
been lodged and that [the] appellees
demonstrated no prejudice, the harsh remedy
of dismissal could be justified only if there
had been some controlling principle, such as
a need to punish the wrongdoer, deter like
conduct, preserve the integrity of the fact
finding process, or protect the dignity of
the court. The superior court identified no
such justification. The failure to abide by
the courts extension order might well have
justified imposition of some sanction, and
had [the] appellees demonstrated that they
incurred unnecessary costs, some appropriate
remedy might have been fashioned. Those
circumstances themselves, however, would not
justify complete dismissal of Metcalfs
appeal. We also note that there is no reason
to think [that the] delay worked in Metcalfs
favor, such that only dismissal could prevent
Metcalf from using delay to his benefit. The
record does not suggest that the court
considered, and rejected as ineffective, any
less extreme sanction or remedy. Cf.
Underwriters at Lloyds [of] London v. The
Narrows, 846 P.2d 118 (Alaska 1993) (setting
aside [a] default judgment imposed as [a]
sanction for [the] defendants discovery
violation where the trial court failed to
consider the effectiveness of any lesser
sanction).
Id.
When we apply the holding in
Metcalf to the facts of Daytons case, we
conclude that Judge Kauvar acted improperly
when she dismissed Daytons amended petition
for post-conviction relief.
It is true that Daytons amended
petition was filed late indeed, quite late
and Daytons attorney offered little or no
justification for his failure to meet the
courts filing deadline. Nevertheless, the
amended petition was filed.
When the State filed its motion
asking Judge Kauvar to strike the late-filed
pleading, the State did not assert that its
ability to litigate the post-conviction
relief action had been prejudiced by Daytons
tardiness. Instead, the State merely argued
that it was outrageous to allow Dayton to
amend his application at this late date.
Despite the States failure to
allege, much less prove, that it had been
prejudiced because of Daytons tardiness,
Judge Kauvar imposed the litigation-ending
sanction of striking the amended petition.
At the time, she did so without explanation.
We acknowledge that, in her later
remarks at the representation hearings of
March and April 2006, Judge Kauvar explained
that her staff had repeatedly contacted
Daytons attorney, asking when he might be
expected to file the amended petition, and
that the attorneys repeated response to these
inquiries was that he was working on it.
Judge Kauvar declared that, in the face of
these responses, she felt [that] she had to
do something and, for this reason, the post-
conviction relief motion was dismissed.
The continued inaction of Daytons
attorney might well have justified Judge
Kauvar in do[ing] something. But under
Metcalf, even when a litigant flouts the
courts deadlines, if the litigant ultimately
files the required pleadings while the case
is still pending, a litigation-ending
sanction is not appropriate unless the
litigants opponents have been prejudiced in
their ability to pursue or defend the
lawsuit, or unless lesser sanctions would be
ineffective to deter the offending litigants
misconduct, preserve the integrity of the
fact-finding process, or protect the dignity
of the court.
Judge Kauvar made no findings on
any of these issues. But with regard to
potential prejudice to the State, we note
that the State never alleged any. And with
regard to the effectiveness (or
ineffectiveness) of lesser sanctions, we note
that, in Judge Kauvars later explanations of
her decision to dismiss Daytons petition, she
gave no hint that she considered lesser
sanctions, much less that she considered
lesser sanctions and reasonably concluded
that they would have been ineffective to
achieve the courts aims.
Accordingly, we conclude that it
was improper for Judge Kauvar to strike
Daytons amended petition for post-conviction
relief.
The States alternative argument that the superior
courts action was harmless error
The State argues that even if it was error
for Judge Kauvar to strike Daytons amended
petition for post-conviction relief, this error
was harmless because the amended petition fails to
state a prima facie case for relief. In
particular, the State argues that the amended
petition asserts claims of ineffective assistance
of counsel that were not addressed in the
affidavit filed earlier by Daytons trial attorney.
Judge Kauvar has made no ruling on this
issue. Moreover, even assuming that the State is
correct, the deficiency in Daytons amended
petition could potentially be cured by having
Daytons trial attorney respond to the claims
contained in the amended petition. Given the
procedural history of this case, we have doubts as
to whether Dayton has had a proper opportunity to
respond to any arguable defects in his amended
petition.
For these reasons, we can not say that the
superior courts action was harmless error.
Conclusion
The superior courts decision to strike
Daytons amended petition for post-conviction
relief is REVERSED. The superior court shall hold
further proceedings on the amended petition. At
that time, the State may pursue its motion to
dismiss the amended petition for failure to state
a prima facie case for relief.
_______________________________
* Sitting by assignment made pursuant to Article IV, Section
11 of the Alaska Constitution and Administrative Rule 23(a).
2 October 31, 2004 was a Sunday.
3 Howarth, 13 P.3d at 755-56.
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