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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-10241 | |
| Petitioner, | ) Trial Court No. 4FA-08-1898 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| BRIAN GALBRAITH, | ) |
| ) | |
| Respondent. | ) No. 2208 January 16, 2009 |
| ) | |
Petition for Review
from the Superior Court, Fourth Judicial
District, Fairbanks, Douglas Blankenship,
Judge.
Appearances: Corinne Vorenkamp, Assistant
District Attorney, Fairbanks, and Talis J.
Colberg, Attorney General, Juneau, for
Petitioner. Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
Superior Court Judge Robert B. Downes dismissed an
indictment against Brian Galbraith because the judge found that
Galbraith was incompetent to stand trial and that he would not
recover his competency within a reasonable time. The State then
secured a second indictment with identical charges, filed it as a
new case, and then filed a peremptory challenge against Judge
Downes.
Presiding Judge Douglas Blankenship then issued an
order denying the peremptory challenge that the State now
appeals. We conclude that the parties should not receive another
opportunity to challenge the assigned trial judge when, following
a defendants declaration of incompetency, the State subsequently
files an identical indictment.
Facts and proceedings
A Fairbanks grand jury indicted Brian Galbraith on
charges of murder in the first degree1 and assault in the first
degree2 on March 16, 2007. The case was assigned to Judge
Downes. Over the next several months, the judge presided over
several pretrial hearings concerning Galbraiths competence.
Judge Downes eventually concluded that Galbraith was unable to
understand the proceedings against him or to assist in his own
defense.
The judge accordingly committed the defendant to the
Alaska Psychiatric Institute for additional evaluation and later
scheduled a hearing to assess the necessity for extended
commitment. After the hearing, Judge Downes was not convinced
that there was a substantial probability that Galbraith would
regain his competency within a reasonable period of time. Based
on these findings, on April 17, 2008, the judge entered an order
dismissing the charges without prejudice as required by AS
12.47.110(b).
After the dismissal, Galbraith remained at the Alaska
Psychiatric Institute on a voluntary commitment status. On May
1, the State filed a motion for reconsideration, supported in
part with an affidavit stating that Galbraith had requested
release. After Judge Downes denied the motion for
reconsideration, the State secured an indictment on identical
charges of murder in the first degree and assault in the first
degree.
The new indictment received a new case number, and the
case was assigned to Judge Downes at arraignment on June 13,
2008. The State then filed a peremptory challenge of Judge
Downes on June 18. At a continued arraignment, however, Judge
Blankenship ruled that the State could not peremptorily challenge
Judge Downes because the new indictment was a continuation of the
case that had been assigned to Judge Downes in 2007. The State
now appeals to this court from Judge Blankenships order denying
the peremptory challenge.
Why the State may not challenge Judge Downes
This appeal was originally filed as an expedited appeal
under Appellate Rule 216. Peremptory challenge appeals are
included in this rule, but only when they are filed by a criminal
defendant.3 Thus, the State is apparently not authorized to
bring an expedited peremptory challenge appeal under Rule 216.
But the issue raised in this case involves an important
question of law on which there is substantial ground for
difference of opinion, and an immediate review of the order or
decision may materially advance the ultimate termination of the
litigation, or may advance an important public interest . . . .4
We have therefore elected to accept the States expedited appeal
as a petition for review.5
This case involves the interpretation of Criminal Rule
25(d), particularly the general entitlement expressed in the
first sentence of Criminal Rule 25(d)(1): In any criminal case
in superior or district court, the prosecution and the defense
shall each be entitled as a matter of right to one change of
judge.6 The proper interpretation of this rule is a legal
question that we review de novo.7
So the issue here is whether a second, identical
indictment filed as a separate case constitutes a new case within
the meaning of this rule. In other words, does a party who
forfeits the peremptory challenge against a judge in the prior
proceeding where the original indictment was dismissed also
forfeit the challenge against that judge in a second proceeding
based on an identical indictment?
In Gieffels v. State,8 the Alaska Supreme Court
addressed a similar issue. Gieffels peremptorily disqualified
the judge assigned to the original case. The indictment was then
dismissed by another judge because of insufficient evidence and
prosecutorial error.9 When the State then secured a second
indictment on an identical charge, the case was assigned to the
original judge for arraignment.
The supreme court held that the original judge erred
when he refused to honor the previous peremptory challenge at the
arraignment on the second indictment:
In McKinnon v. State, we stated that
where two proceedings involve the same
defendant and the necessity of proving the
same facts and issues, a judge who was
preempted in the prior proceeding is
automatically disqualified from presiding at
any proceeding against the defendant in which
those same charges [are] at issue.
Therefore, Judge Moody was automatically pre-
empted in the second proceeding.[10]
Similarly, this court and the Alaska Supreme Court have held that
probation revocation proceedings11 and criminal contempt
proceedings12 are continuations of the same case for the purpose
of peremptory challenges.
In Staso v. State, Department of Transportation,13
however, the Alaska Supreme Court decided that each side gets a
new peremptory challenge under Civil Rule 42 in a refiled civil
suit, even when the second complaint is identical to a complaint
previously dismissed.14 There the supreme court noted the
uncertainty that could be caused if the continuing validity of
the challenge hinged on whether the new complaint alleged
significantly different counts or theories.15 The court also
relied on the need to give civil litigants notice of their rights
and the desire to avoid difficult questions about whether a newly
filed case is related to the original case.16 The court noted
that there were civil penalties available to address the States
concerns about judge shopping.17
The Staso court recognized that Gieffels held that a
judge, who has been peremptorily disqualified under Criminal Rule
25(d) in an earlier proceeding under an indictment which was
later dismissed, cannot conduct the later proceedings which arise
from a second identical indictment.18
In Plyer v. State, this court limited the application
of Staso in criminal proceedings:
We do not interpret Staso as creating a
hard-and-fast rule for all situations in
which related proceedings are given separate
court numbers. Rather, we read Staso in a
more limited fashion: the supreme court
decided that, in the particular context of
refiled civil actions, the public policy
favoring continuity in judicial decision-
making was outweighed by the policy of giving
litigants clear advance
notice of their rights.[19]
Accordingly, we held that the parties to post-conviction relief
proceedings (which are civil in nature) are not entitled to
challenge the judge who presided over the original criminal
action. In reaching that conclusion we relied on the significant
burden a contrary holding would place on the judicial system.20
The supreme court has also limited the Staso rule, recognizing
that guardianship proceedings involving the same parties should
be treated as part of any ongoing child-in-need-of-aid case.21
We conclude that we should follow this same line of
reasoning in the case before us a case where the original
indictment was dismissed because of the defendants incompetence
to stand trial, and then an identical indictment was subsequently
filed. In accordance with Gieffels, we hold that a judge who was
preempted in the proceedings on the original indictment remains
disqualified in the later proceedings on the second identical
indictment. Likewise, if the parties did not exercise a
peremptory challenge to a judge in the proceedings on the
original indictment, the parties have no new right to challenge
the judge in the proceedings on the later identical indictment.
This Court therefore AFFIRMS Judge Blankenships order
denying the States peremptory challenge of Judge Downes.
_______________________________
1 AS 11.41.100(a)(1)(A).
2 AS 11.41.200(a)(2).
3 See Appellate Rule 216(b)(2).
4 Appellate Rule 402(b)(2).
5 See Plyler v. State, 10 P.3d 1173, 1174 (Alaska App.
2000); Moore v. State, 895 P.2d 507, 509 n.2 (Alaska App. 1995).
6 Criminal Rule 25(d)(1) (emphasis added).
7 See Terry S. v. State, Dept. of Health & Soc. Servs., 168
P.3d 489, 493 (Alaska 2007).
8 552 P.2d 661(Alaska 1976), disapproved of on other grounds
by Miller v. State, 617 P.2d 516 (Alaska 1980).
9 Id. at 663.
10 Id. at 665 (internal citation omitted) (quoting McKinnon
v. State, 526 P.2d 18, 25 (Alaska 1974)).
11 See McKinnon, 526 P.2d at 25.
12 See Webber v. Webber, 706 P.2d 329, 329-30 (Alaska App.
1985).
13 895 P.2d 988 (Alaska 1995).
14 Id.
15 Id.
16 Id. at 990.
17 Id. at 992.
18 Id. at 991 (citing Gieffels, 552 P.2d 661).
19 Plyler, 10 P.3d at 1176.
20 Id.
21 Terry S., 168 P.3d at 494-95.
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