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Beier v. State (1/26/2018) ap-2587

Beier v. State (1/26/2018) ap-2587

                                                   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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



CHRISTIAN LYNN BEIER,  

                                                                  Court of Appeals No. A-12943  

                                   Appellant,                   Trial Court No. 3AN-15-9578 CR  



                          v.  

                                                                             O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                       No. 2587 - January 26, 2018  



                                          

                 Appeal   from  the   Superior  Court,  Third  Judicial  District,  

                 Anchorage, Kevin Saxby and Jack W. Smith, Judges.  



                 Appearances:  Gary Soberay,  Assistant  Public  Defender,  and  

                                                                              

                 Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                     

                 Donald  Soderstrom,  Assistant  Attorney  General,  Office  of  

                                                                        

                 Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                 General,  Juneau,  for  the  Appellee.    Doug  Wooliver,  Deputy  

                 Administrative Director, Anchorage, for amicus curiae Alaska  

                 Court System.  



                 Before: Mannheimer, Chief Judge, and Allard and Wollenberg,  

                                                      

                 Judges.  



                 Judge ALLARD.  


----------------------- Page 2-----------------------

                        Alaska Statute 22.20.022 provides for peremptory challenges to judges.                                                 



                                                                                                                        1  

Alaska Criminal Rule 25(d) implements this right in criminal cases.                                                                               

                                                                                                                           Under Rule 25(d),  



                                                                                                                                                       

the prosecution and the defense are each entitled to one peremptory challenge if they file  



                                                                                                                                                      

their notice of change of judge within five days after receiving notice that the judge has  



                                                                                                                                      

been assigned to try the case (provided that they have not participated in proceedings  



                                                           2  

                                            

before that judge in the interim). 



                                                                                                                                                      

                        In the present case, Christian Lynn Beier was notified at a Tuesday trial call  



                                                                                                                                                              

that Anchorage Superior Court Judge Kevin Saxby was assigned to preside over his trial.  



                                                                                                                                            

Beier's attorney filed a peremptory challenge of Judge Saxby the following Monday,  



                                                                                                                                                              

which was within the five days permitted by the rule.  (Under the provisions of Alaska  



                                                                                                                                             

Criminal Rule 40(a), the intervening weekend days are not included in the five-day  



                     3 

                                                                                                                                       

calculation. )              But  the  superior  court  ruled  that  the  defense  attorney's  peremptory  



                                                                                                                                                  

challenge was untimely because, under a standing order of the Anchorage superior court,  



                                                                                                                                              

litigants who were notified of a judicial assignment at a Tuesday trial call were required  



                                                                                                                                                   

to file any peremptory challenge by Thursday at noon (that is, within a day and a half).  



      1     See Main v. State, 668 P.2d 868, 872 (Alaska App. 1983).  



      2     See Alaska R. Crim. P. 25(d)(2), (5).  Alaska Criminal Rule 25(d)(5) provides:  



                  A party loses the right under this rule to change a judge when the party,  

                                 

                  after  reasonable  opportunity  to  consult  with  counsel,  agrees  to  the  

                                                                                                                                

                  assignment of the case to a judge or knowing that the judge has been  

                                                                                                   

                  permanently assigned to the case, participates before the judge in an  

                                         

                  omnibus hearing, any subsequent pretrial hearing, a hearing under Rule  

                                                        

                  11, or the commencement of trial.  



      3  

                                                                                                                                         

            Under Criminal Rule 40(a), weekends and holidays are excluded from calculation  

when a prescribed time period is less than seven days.  



                                                                          - 2 -                                                                    2587
  


----------------------- Page 3-----------------------

                       Beier now appeals the denial of his peremptory challenge under Alaska                                           

Appellate Rule 216(a)(2).                   4  



                                                                                                                                             

                       The State of Alaska has filed a brief in opposition to Beier's appeal. At our  



                                                                                                                                   

request, the Alaska Court System has also filed a brief - but the court system concedes  



                                                                                                                                                

that the Anchorage superior court's standing order is unenforceable to the extent that it  



                                                                               

conflicts with the provisions of Criminal Rule 25(d).  



                                                                                                                                            

                       For the reasons explained here, we accept the court system's position that  



                                                                                                                 

the shorter time limit specified in the Anchorage standing order is unenforceable.  



                                                       

            The State's argument on appeal  



                                                                                                                                        

                       The State contends that the Anchorage standing order constitutes a lawful  



                                                                                                                                             

exercise of the superior court's authority under Alaska Criminal Rule 53 to relax the  



                                                                                                                                               

five-day time period specified in Rule 25(d)(2).  Rule 53 gives courts the authority to  



                                                                                                                                          

relax or dispense with criminal rules "in any case where it shall be manifest to the court  



                                                                                                                                

that a strict adherence to them will work injustice." The State argues that the Anchorage  



                                                                                                                                    

superior court's standing order falls within the purview of that rule because it is designed  



                                                                                                                                               

to effectuate the timely and efficient administration of justice in felony cases and to  



                                                                                                                               

prevent the kind of undue delay  and witness availability problems that peremptory  



                                                                  

challenges filed on the eve of trial can create.  



                                                                                                                                              

                       But Rule 53 is inapplicable to this situation.   As noted above, Rule 53  



                                                                                                                                      

authorizes a judge to dispense with a provision of the criminal rules when, in the context  



                                                                                                                                       

of an individual case, the judge concludes that a strict adherence to the rule as written  



                                                                                                                                    

will manifestly lead to injustice.  In contrast, the Anchorage superior court's standing  



      4    Appellate Rule 216(a)(2) allows a criminal defendant to seek immediate appellate  



review when their peremptory challenge of a judicial officer is denied.  



                                                                     -  3 -                                                              2587
  


----------------------- Page 4-----------------------

 order is not an adjudicative ruling by an individual judge in an individual case.                                                                                                                                                                                                 Instead,  



 it is a rule of local practice - a rule that applies to                                                                                                                       all  felony cases scheduled for trial in                                                                                  



 the Anchorage superior court. In the words of Alaska Administrative Rule 46(c)(2), this                                                                                                                                                                                                            



 standing   order   is  a   "non-adjudicating   directive"   that   "effectuat[es]   administrative  



 concerns."  



                                               Administrative Rule 46(a) grants authority to the presiding judge of a                                                                                                                                                                                      



judicial district to promulgate such administrative orders, but Administrative Rule 46(b)                                                                                                                                                                                                    



 declares that:   



                                               No order shall be promulgated that is inconsistent with the                                                                                                                                            

                                               Alaska Statutes or the Alaska Rules of Court. The vesting of                                                                                                                                               

                                                all rulemaking authority in the Alaska Supreme Court shall                                                                                                                                      

                                               be recognized.   



 Our case law likewise recognizes that a local practice rule cannot directly conflict with                                                                                                                                                                                                      

 the statutes or the rules.                                                         5  



                                                                                                                                                                                                                                                                                 

                                                We  therefore  reject  the  State's  argument  that  the  Anchorage  superior  



                                                                                                                                                                                                                                                                                                     

 court's standing order is justified under Criminal Rule 53. Instead, we conclude that the  



                                                                                                                                                                                                                                                                                                  

 procedural  and  substantive  requirements  of  Administrative  Rule  46  govern  the  



                                                                                                                                                                              

 enforceability of the standing order at issue here.  



                                                                                                                                                                                

                         The Alaska Court System's position in this appeal  



                                                                                                                                                                                                                                                                                 

                                               Administrative Rule 46(e) specifies the procedures that must be followed  



                                                                                                                                                                                                                                                                                                     

 when a presiding judge issues an administrative order.  Among other requirements, the  



                                                                                                                                                                                                                                                                                     

 administrative order must be filed with the administrative director of the court system,  



             5          See Romero v. Alaska Financial Services, Inc., 873 P.2d 1278, 1280 (Alaska 1994);  



Harris v. State, 195 P.3d 161, 173 (Alaska App. 2008).  



                                                                                                                                                - 4 -                                                                                                                                         2587
  


----------------------- Page 5-----------------------

and the administrative director must review the order within thirty days to ensure that it                                                                     

does not conflict with the policy of uniform statewide rules and practices.                                                              6  



                                                                                                                                                       

                         Presiding judge orders that appear to be inconsistent with the Alaska Court  



                                                                                                                                                            

Rules must be referred to the Alaska Supreme Court, who may disapprove or modify the  



           7  

                                                                                                                                                  

order.         In addition, the clerks of court and the court system's law libraries are required  



                                                                                                                                                         

to maintain a judicial Administrative Order Book that includes the orders that have been  



                                                             8  

                                                 

reviewed by the Supreme Court. 



                                                                                                                                                       

                         We  reviewed  the  Administrative  Order  Book  maintained  by  the  court  



                                                                                                                                             

system's law library in Anchorage, and we found that it did not contain the Anchorage  



                                                                                                                                              

standing  order  that  is  at issue  in  this  case.                                   Because  we  were  unable  to  otherwise  



                                                                                                                                                          

determine   whether   the   superior   court's   standing   order   was   submitted   to   the  



                                                                                                                                                             

administrative director, and whether it went through the review process described in  



                                                                                                                                                                   

Administrative Rule 46, we asked the Alaska Court System to respond to Beier's appeal.  



                                                                                                                                                 

                         In its pleading, the court system concedes that the Anchorage standing  



                                                                                                                                                            

order has not gone through the review procedures specified by Administrative Rule 46,  



                                                                                                                

and that the time limit specified in the standing order is not enforceable.  



                                                                                                                                                           

                         According to the court system's pleading, the standing order at issue in this  



                                                                                                                                                       

case was "intended to facilitate the movement of cases by encouraging parties to agree  



                                                                                                                                                           

to a newly assigned judge in time to start trial the following Monday" - but that the  



                                                                                                                                              

superior court did not intend to preclude parties from exercising peremptory challenges  



                                                                                                                                                         

"in any case where a party exercises his or her right to challenge a judge after two days  



                             

but within five days."  



      6     Alaska R. Admin. P. 46(e)(1)-(2).  



      7     Alaska R. Admin. P. 46(e)(2)-(3).   



      8     Alaska R. Admin. P. 46(e)(4).  



                                                                            -  5 -                                                                     2587
  


----------------------- Page 6-----------------------

                    The court system further declares that it intends to "adopt practices to  

                                                                                                                              



ensure that any peremptory challenge properly exercised within five days will not be  

                                                                                                                             



deemed untimely in future cases."  

                                         



                    Based  on  the  provisions  of  Administrative  Rule  46  and  on  the  court  

                                                                                                                         



system's response, we conclude that the shorter time limit specified in the Anchorage  

                                                                                                                



superior court's standing order is not enforceable.  And because Beier's attorney filed  

                                                                                    



his peremptory challenge within the time period specified in Criminal Rule 25(d), that  

                                                                                                         



challenge should have been granted.  

                                           



          Conclusion  



                    Thesuperior court's denialofBeier'speremptorychallengeofJudgeSaxby  

                                                                                                                        



is REVERSED.  

    



                                                            -  6 -                                                       2587
  

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