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Brueggeman v. Ashman (1/29/99), 973 P 2d 569
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
LEO ALBERT BRUEGGEMAN, )
) Supreme Court No. S-8388
Appellant, )
) Superior Court No.
v. ) 3PA-97-711 Civil
)
THE HONORABLE PETER J. ASHMAN,)
District Court Judge, and the ) O P I N I O N
DISTRICT COURT FOR THE STATE )
OF ALASKA, THIRD JUDICIAL ) [No. 5074 - January 29, 1999]
DISTRICT, )
)
Appellees. )
______________________________)
)
WILLIAM FRANCIS ATTWOOD, )
)
Appellant, ) Supreme Court No. S-8477
)
v. ) Superior Court No.
) 3PA-97-186 Civil
THE HONORABLE PETER J. ASHMAN,)
District Court Judge, and the )
DISTRICT COURT FOR THE STATE )
OF ALASKA, THIRD JUDICIAL )
DISTRICT, )
)
Appellees. )
______________________________)
Appeal in File No. S-8388 from the Superior
Court of the State of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge. Appeal in File No. S-8477 from the
Superior Court of the State of Alaska, Third Judicial District,
Palmer, Eric B. Smith, Judge.
Appearances: Leo Albert Brueggeman, pro se,
Big Lake. William Francis Attwood, pro se, Wasilla. William F.
Morse, Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellees.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not
participating.]
PER CURIAM.
I. INTRODUCTION
Criminal defendants cannot assert collaterally, by
petition for writ of prohibition, jurisdictional and venue defenses
that they can assert directly in pending criminal cases.
II. FACTS AND PROCEEDINGS
Leo Albert Brueggeman and William Francis Attwood were
each cited for moving violations and ordered to appear in district
court. They each filed in the superior court a petition for writ
of prohibition objecting to venue and jurisdiction, and asserted
that a district court of the State of Alaska could not try them for
driving with canceled licenses.
The superior court dismissed their petitions following
motion practice. Brueggeman and Attwood appeal.
III. DISCUSSION
We review de novo an order dismissing a complaint for
failure to state a claim. [Fn. 1]
A writ of prohibition will be granted only "sparingly and
only where there is no adequate remedy by appeal."[Fn. 2]
In the course of the criminal proceedings against them,
Brueggeman and Attwood were or will be able to raise the same
jurisdiction and venue issues which their petitions attempted to
raise. Participation in the criminal proceedings does not waive
those defenses. [Fn. 3] In the event of conviction, they will be
able to raise those defenses on appeal. [Fn. 4] Therefore they
have adequate appellate remedies in the criminal proceedings, and,
accordingly, the superior court did not err in dismissing their
petitions.
Brueggeman and Attwood also argue that in denying their
respective petitions the superior court improperly considered
matters outside the pleadings. There is no indication that the
superior court did so. But in any event we can affirm on the
ground that there was no legal merit to their petitions for writ of
prohibition, given their opportunity to raise these issues in the
context of their criminal prosecutions. [Fn. 5]
IV. CONCLUSION
We AFFIRM.
FOOTNOTES
Footnote 1:
See Kollodge v. State, 757 P.2d 1024, 1026 n.4 (Alaska 1988).
Footnote 2:
Davis v. O'Keefe, 283 N.W.2d 73 76 (N.D. 1979). See also Yohn
v. Love, 76 F.3d 508, 521 (3d Cir. 1996) ("A petitioner must show
that (1) there is no adequate remedy at law which would afford
relief, and (2) there is an extreme necessity for the relief
requested to secure order and regularity in judicial proceedings."
(citation omitted)).
Footnote 3:
See Anderson v. State, Dep't of Highways, 584 P.2d 537, 539
(Alaska 1978).
Footnote 4:
See 1 Charles Alan Wright, Federal Practice and Procedure sec.
193, at 692-94 (2d ed. 1982) ("The objection is timely though first
raised in a motion for new trial, a motion for arrest of judgment,
on appeal, or by collateral attack."(citations omitted)).
Footnote 5:
See Andrews v. Wade & De Young, Inc., 875 P.2d 89, 90 (Alaska
1994).
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