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I.J. v State (5/2/2008) ap-2162

I.J. v State (5/2/2008) ap-2162

                             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


I. J., )
) Court of Appeals No. A-10125
Petitioner, ) Trial Court No. 3DI-05-008 DL
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Respondent. ) No. 2162 May 2, 2008
)
          Petition for Review from the Superior  Court,
          Third  Judicial  District,  Dillingham,  Fred
          Torrisi, Judge.

          Appearances:   Leslie N.  Dickson,  Assistant
          Public  Advocate,  and  Joshua  Fink,  Public
          Advocate,   Anchorage,  for  the  Petitioner.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.
          COATS, Chief Judge, concurring.

          In  July  2007, the State filed a juvenile  delinquency
petition   against  the  minor,  I.  J.,  alleging  fourth-degree
controlled   substance   misconduct   (a   class   C    felony).1
   I.  J.  did  not  file  a request for a  jury  trial,  so  the
case was scheduled for a bench trial on October 11th.
          On  the eve of trial, the Public Defender Agency (which
          had been representing I. J.) withdrew because of a conflict of
interest  arising from its representation of a co-participant  in
the drug transaction.  The superior court appointed the Office of
Public   Advocacy  to  be  I.  J.s  attorney.   The  court   also
rescheduled I. J.s trial for the week of October 23rd  apparently
despite  knowledge that this was the week of a statewide training
conference  held jointly by the Public Defender  Agency  and  the
Office of Public Advocacy.
          The  Office of Public Advocacy received notice  of  its
appointment  on  October  15th.  The  assistant  public  advocate
assigned to I. J.s case filed an emergency motion to continue the
trial.   Because  of  the  attorneys  unavailability,  the  court
continued I. J.s trial to the week of November 20th.
          The  Office of Public Advocacy received its first  (and
apparently  only  partial) discovery in I.  J.s  case  on  either
October  30th or November 2nd.  Two weeks later, at the  calendar
call  held  on November 16th, the court informed I. J.s assistant
public advocate that the case was currently scheduled for a bench
trial   but that she (i.e., the assistant public advocate)  could
ask for a jury trial by filing the appropriate motion.
          Seven  days  later, on November 23rd, I.  J.s  attorney
filed  a written request for a jury trial.  The court then denied
this  request on the basis that it was untimely under Delinquency
Rule 21(a).
          Delinquency  Rule 21(a) declares that a minors  request
for  jury trial in a delinquency proceeding must be filed  within
10 days of the minors arraignment on the delinquency petition, or
within  10  days  of the time the minor enters a  denial  to  the
petition,  whichever  date is later.  The  childrens  master  who
denied I. J.s request for a jury trial explained his decision  as
follows:
          
               [The  minor]  has  been  arraigned  four
          times[,]  and denials were entered  [at]  the
          arraignment[s].  The most recent  arraignment
          and  denial occurred on August 3,  2007.   No
          request  for  a  jury trial, either  oral  or
          written,  was made until November  16,  2007,
          more than three months after the deadline set
          forth in Rule 21 ... .
          
               The   minor  has  been  represented   by
          counsel since January 29, 2007.  He offers no
          justifiable   reason   for   the   delay   in
          requesting  a jury trial or any justification
          for relaxing the rule. 4
          
                    Fn  4:   At  the November 16,  2007
               calendar  call  [I.  J.s]  new  attorney
               suggested  that[,] because she  is  new,
               the ten-day period in which to request a
               jury  trial  should  begin  anew.    She
               offered  no authority for this theory[,]
               and  [she] appears to have abandoned  it
               in  the  written request for jury  trial
               ...  .   Moreover, the oral (and  first)
               request for jury trial occurred  at  the
               November 16 hearing, more than  a  month
               after   [the   attorney]   entered   her
               appearance.
          
          (Emphasis in the original.)
                    After  receiving this  ruling  from
          the  childrens master, I. J.s attorney sought
          relief  from  the superior court.   When  the
          superior  court affirmed the masters  ruling,
          I.  J.  petitioned this Court to review  this
          matter.     We    stayed   the    delinquency
          proceedings  in the superior court  until  we
          issued a decision in this matter.
          Since   that  time,  I.  J.  turned
eighteen,   and   the  State  dismissed   the
underlying charge.  Nevertheless, because  of
the  importance of the issue raised  in  this
case,  and because the briefing of this issue
was already complete and a draft decision had
already been approved by this Court when  the
underlying  charge  was  dismissed,  we  have
decided  to issue an opinion to resolve  this
issue for future cases.
          We   reverse  the  superior  courts
decision for the reasons that follow.
          The  Alaska Constitution guarantees
minors   the  right  to  trial  by  jury   in
delinquency  proceedings if  the  delinquency
petition  is based on allegations of criminal
conduct that, if committed by an adult, could
result  in  incarceration.  R.L.R. v.  State,
487  P.2d  27,  33  (Alaska  1971).   In  his
petition  for  review to this  Court,  I.  J.
asserts that Alaska Delinquency Rule 21(a) is
unconstitutional  because it  authorizes  the
superior court to deny a minors right to jury
trial  simply  on  the basis  of  the  minors
inaction (i.e., the minors failure to make  a
request within the 10-day period specified by
the rule), rather than requiring the court to
personally  address the minor  and  obtain  a
knowing  and intelligent waiver of the  right
to  trial  by  jury  the kind of waiver  that
would be required in a criminal case.2
          In  its  response, the State argues
that     Delinquency    Rule     21(a)     is
constitutional, but the State  also  contends
that  the  real  issue in this  case  is  how
strictly  Delinquency Rule  21(a)  should  be
applied.   The  State notes  that  the  trial
prosecutor did not oppose I. J.s request  for
a  jury  trial,  and  the State  forthrightly
concedes that it would suffer no prejudice if
          I. J.s request for a jury trial were now
honored.   The  State concludes its  response
with the following sentence:  Because of  the
importance of the right to a jury  trial  and
the  apparent absence of prejudice to  either
the  [S]tate or the trial court from  I.  J.s
late  demand [for a jury trial], the  [S]tate
takes  no  position on [I. J.s] petition  for
review   (aside   from  its   argument   that
Delinquency    Rule   21(a)    is,    indeed,
constitutional).
          In  arguing  that Delinquency  Rule
21(a)  is  unconstitutional, I. J.  faces  an
uphill  battle.  Under federal constitutional
law, a minor has no right to a jury trial  in
delinquency    proceedings.    McKeiver    v.
Pennsylvania,  403 U.S. 528,  545;  91  S.Ct.
1976, 1986; 29 L.Ed.2d 647 (1971).  The right
to  jury  trial  exists only because  of  our
supreme  courts interpretation of the  Alaska
Constitution in the R.L.R. decision.  And  in
R.L.R., the supreme court explained at length
why the court believed that a minors right to
jury  trial in delinquency proceedings should
be  regulated  in  a manner equivalent  to  a
civil  litigants  right to jury  trial  under
Alaska Civil Rule 38.  R.L.R., 487 P.2d at 33-
35.
          Civil  Rule  38(a)  declares:   The
right  of  trial by jury [in civil cases]  as
declared  by section 16 of article I  of  the
[Alaska]  constitution ... shall be preserved
to  the parties inviolate.  But despite  this
apparent confirmation of the important nature
of  the  right to jury trial in civil  cases,
Civil  Rule 38 goes on to declare  that  this
right can be waived by inaction:

     (b)   Demand.   Any party may  demand  a
trial  by jury of any issue triable of  right
by a jury by serving upon the other parties a
demand therefor in writing at any time  after
the  commencement of the action and not later
than  10  days after the service of the  last
pleading directed to such issue.  Such demand
shall  be made in a separate written document
signed by the party making the demand  or  by
the partys attorney.
     .  .  .

     (d)  Waiver.  The failure of a party  to
serve  a demand as required by this rule  and
to   file   it  as  required  by  Rule   5(d)
constitutes a waiver by the party of trial by
jury. ...

          In Patrick v. Sedwick, 391 P.2d 453
(Alaska  1964), our supreme court upheld  the
constitutionality of Civil  Rule  38(d)   the
portion of Rule 38 which states that a partys
failure to file a timely request for  a  jury
trial  constitutes a waiver  of  that  right.
Here is the courts discussion of this point:

     As  a final point, the plaintiff charges
that  she was denied her constitutional right
to  a trial by jury.  The first time that the
plaintiff requested a jury trial in this case
seems   to   have   been  at   the   pretrial
conference.  This conference was held off the
record  and apparently not until many  months
after the last pleading had been served.  ...

     Article  I,  section 16  of  the  Alaska
Constitution provides that [i]n  civil  cases
where  the amount in controversy exceeds  two
hundred fifty dollars, the right of trial  by
a  jury  of twelve is preserved to  the  same
extent as it existed at common law.  [But in]
certain  provisions of [Civil Rule] 38,  this
right to trial by jury has been regulated  in
the following manner:

          (b)   Demand.  Any  party  may
     demand a trial by jury of any issue
     triable  of  right  by  a  jury  by
     serving  upon the other  parties  a
     demand  therefor in writing at  any
     time after the commencement of  the
     action  and not later than 10  days
     after  the  service  of  the   last
     pleading  directed to  such  issue.
     Such  demand  shall be  made  in  a
     separate written document signed by
     the  party making the demand or  by
     his attorney.
          .  .  .

          (d)  Waiver.  The failure of a
     party to serve a demand as required
     by  this  rule and to  file  it  as
     required by Rule 5(d) constitutes a
     waiver  by  him of trial  by  jury.
     ...

     Under the quoted provisions of the rule,
the   plaintiff   [could   be]   denied   her
constitutional right to trial by jury ...  if
she  failed to proceed in accordance with the
rule.  That is exactly what occurred in  this
case:   she failed to file, within  ten  days
after service of the last pleading, a written
demand for trial by jury, as required by  the
rule.   In  fact, the record does not  reveal
that  she  ever  filed the requisite  written
demand.

     The  provisions quoted from the rule are
not unconstitutional unless they amount to an
unreasonable  regulation  of  the  manner  of
exercising  the  right to trial  by  jury  in
civil  cases.  Both the United States Supreme
Court and state appellate courts have decided
that  provisions such as those  contained  in
[Civil    Rule]    38(b)    and    (d)    are
constitutional.  [Citations omitted]  We  are
in accord with those decisions. 14

          Fn   14:    For  Professor   Moores
     discussion  on the constitutionality  of
     Rule  38(d)  of  the  Federal  Rules  of
     Procedure, which is identical  with  our
     [Civil Rule] 38(d), see 5 Moore, Federal
     Practice, para. 38.43 (2d ed. 1951).

Patrick, 391 P.2d at 459-460.
          Our  supreme  courts  decisions  in
R.L.R. and Patrick both strongly suggest that
Delinquency Rule 21(a) is constitutional.
          However,  we need not resolve  this
issue   for  we conclude that, even  when  we
presume  the constitutionality of Delinquency
Rule  21(a),  the superior court  abused  its
discretion when it denied I. J.s request  for
a jury trial.
          As  explained  above,  the  supreme
court  held in R.L.R. that the right to  jury
trial  in  delinquency proceedings should  be
regulated  in  the  same  manner  that  Civil
Rule 38 regulates the constitutional right to
jury   trial  in  civil  cases.   The  courts
decision   in   R.L.R.  is  the   basis   for
Delinquency  Rule  21(a)  which,  like  Civil
Rule  38,  imposes a 10-day  time  limit  for
requesting  a jury trial, and which  declares
that the case will be tried by a judge if the
minor  fails to make a timely request  for  a
jury.
          But the Civil Rules contain another
provision   Civil Rule 39  that is a  sibling
provision to Civil Rule 38.  This rule reads:

     (b)   [Trial by] the Court.  Issues  not
demanded  for  trial by jury as  provided  in
Rule  38  shall  be tried by the  court;  but
notwithstanding the failure  of  a  party  to
demand   a  jury  ...,  the  court   in   its
discretion upon motion may order a trial by a
jury of any or all issues.

          The  supreme court has acknowledged
that  this  rule  gives  a  trial  judge  the
authority to grant a civil litigants  request
for a jury trial even though that request  is
untimely  under Civil Rule 38.  Patrick,  391
P.2d at 460.
          In  a  later  case,  Hollembaek  v.
Alaska  Rural Rehabilitation Corp., 447  P.2d
67  (Alaska 1968), Justice Jay Rabinowitz (as
a  single member of the court) expressed  his
views  concerning  how a trial  judge  should
exercise  the  discretion afforded  by  Civil
Rule  39(b).   Justice Rabinowitz  concluded,
based  on the following factors, that it  was
an abuse of discretion for the trial judge to
deny  a  litigants untimely request for  jury
trial:
          (1)  the  litigant filed a  written
     demand for a jury trial within ten  days
     after the last pleading directed to  the
     issue   [on   which   jury   trial   was
     requested];
          (2) [t]he demand for jury trial was
     filed  some  eight months prior  to  the
     time  the trial actually took place   in
     other words, granting  the request would
     pose   no   problem   for   the   courts
     scheduling  and administrative  handling
     of the case;
          (3) the litigants attorney declared
     that   his   earlier  act  of  seemingly
     acquiescing in a bench trial  by signing
     off  on  written  pre-trial  order  that
     provided  for  a bench trial   had  been
     inadvertent; and
          (4)  the  record demonstrated  that
     the  opposing  party  would  suffer   no
     prejudice on account of the late request
     for  a  jury trial  that, in  fact,  the
     other party was willing to stipulate  to
     the granting of a jury trial.
Hollembaek, 447 P.2d at 69-70.
          Although Delinquency Rule 21(a)  is
modeled  on  Civil Rule 38,  the  Delinquency
Rules  do not contain a provision modeled  on
Civil Rule 39(b).  However, another provision
of  the  Delinquency Rules  Delinquency  Rule
1(f)   allows the superior court to  turn  to
the  Civil  Rules  in  situations  where  the
Delinquency   Rules  do   not   prescribe   a
governing procedure:

     (f)   Situations  Not Covered  by  These
Rules.   If  these rules do not  prescribe  a
specific procedure, the court may proceed  in
any  lawful manner, including application  of
the   Civil  or  Criminal  Rules,  applicable
statutes,   the  Alaska  and  United   States
Constitutions  or  the common  law.   Such  a
procedure may not be inconsistent with  these
rules  and  may not unduly delay or otherwise
interfere  with  the  unique  character   and
purpose of delinquency proceedings.

          Civil    Rule    39(b)    is    not
inconsistent with the time limits and  waiver
by  inaction provisions of Civil Rule 38.  In
fact,  the  two rules are sibling provisions.
Civil  Rule  39(b) is expressly  designed  to
give  a judge the discretion to grant a  late
request  for  a  jury trial even  though  the
parties,  by  failing  to  meet  the   10-day
deadline  of  Civil Rule 38, have  previously
waived their right to jury trial.
          As explained above, and as shown by
the   supreme  courts  decision  in   R.L.R.,
Delinquency  Rule 21(a) is modeled  on  Civil
Rule   38.   Because  Civil  Rule  39(b)   is
consistent  with Civil Rule 38,  we  conclude
that  Civil Rule 39(b) is likewise consistent
with Delinquency Rule 21(a).
          Accordingly,      pursuant       to
Delinquency  Rule 1(f), the childrens  master
and  the  superior court should have  applied
Civil  Rule  39(b) when assessing whether  to
grant  or deny I. J.s untimely request for  a
jury trial.
          Although  the Alaska Supreme  Court
has   never   issued  a  decision   expressly
defining the criteria that a court should use
when  deciding whether to grant a  late-filed
request  for jury trial under Rule 39(b),  we
believe that Justice Rabinowitzs approach  in
Hollembaek provides a good framework for this
analysis.
          As    explained   above,    Justice
Rabinowitz cited four factors to support  his
conclusion  that the trial court  abused  its
discretion  when it denied the  late  request
for a jury trial in Hollembaek:  (1) the fact
that  the  request, although  untimely  under
Rule  38, was nevertheless reasonably  prompt
given the litigation history of the case; (2)
the  fact  that  the request  was  made  long
enough  in advance of the trial that granting
the  request would not pose a problem for the
courts scheduling and administrative handling
of   the   case;  (3)  there  was  reasonable
justification for not holding the litigant to
the  litigants earlier acquiescence in a non-
jury  trial;  and (4) the record demonstrated
that  the  opposing  party  would  suffer  no
prejudice on account of the late request  for
a jury trial.
          Analyzing the facts of I. J.s  case
in  light of these four criteria, we conclude
that  I. J.s request for a jury trial  should
have   been  granted.   As  explained  above,
I. J.s original attorney (the Public Defender
Agency) was forced to withdraw because  of  a
conflict.  The Office of Public Advocacy  was
appointed on October 12, 2007, but the Office
did   not  learn  of  its  appointment  until
October  15th  and did not begin  to  receive
copies  of the States discovery in  the  case
until two weeks later.  Moreover, on November
16, at the Offices first court appearance for
I.  J.,  the  childrens master  informed  the
Office  that, although the case was currently
scheduled for a bench trial, the Office could
file  a  written  request for  a  jury  trial
which the Office did on November 23.
          For   reasons  unrelated   to   the
litigation  of  this jury  trial  issue,  the
court  delayed  I. J.s trial until  February.
Thus, it does not appear that the request was
made  so  close to the time of  trial  as  to
cause problems for the courts scheduling  and
administration of the case.
          And  finally,  as explained  above,
the State did not oppose I. J.s request for a
jury  trial,  and  the  State  now  expressly
declares (in its pleading to this Court) that
the  granting of the request for a jury trial
would not have prejudiced its prosecution  of
this case.
          For these reasons, we conclude that
it   was  an  abuse  of  discretion  for  the
superior  court  to  deny I.  J.s  late-filed
request  for  a jury trial.  The decision  of
the superior court is REVERSED.
COATS, Chief Judge, concurring.

          Although   the   majority   opinion
reaches the correct result in this case  I.J.
is  entitled  to a jury trial   the  majority
opinion appears to set a very high bar for  a
juvenile who files an untimely request for  a
jury   trial.   I  believe  that  the  strict
application  of Delinquency Rule 21(a)  could
result  in juveniles being deprived of  their
right  to a jury trial.  I am quite confident
that  the Alaska Supreme Court, a court  that
has  been in the forefront of protecting  the
rights  of  Alaskans, would not require  this
result.
          In  R.L.R.  v. State,1  the  Alaska
Supreme Court held that whenever a child in a
delinquency proceeding was charged with  acts
that   would   be   a   crime   subject    to
incarceration if committed by an  adult,  the
juvenile was guaranteed the right to  a  jury
trial by  the Alaska Constitution.2
          I.J. argues that, like an adult, he
was  entitled  to  a  jury  trial  unless  he
knowingly and voluntarily waived that  right.
But,  as  the State points out, that  is  not
what  the Alaska Supreme Court held in R.L.R.
In  R.L.R., the supreme court held that after
first  consulting with his  counsel  and  his
parents  or  guardian, the  juvenile  had  to
affirmatively assert the right to a trial  by
jury.3   The  court found that the  childrens
rules  in effect at that time incorporated  a
civil  rule that required a person who wanted
to  have a jury trial to make the request not
later  than 10 days after the service of  the
last   pleading  directed  to  such   issue.4
Currently,  Delinquency Rule  21(a)  provides
that [t]he juvenile must request a jury trial
within 10 days of the arraignment on petition
or  when  entering a deny plea, whichever  is
later.   The trial court relied on this  rule
in  denying  I.J.s request for a  jury  trial
because the request was untimely.
          The   trial   courts   ruling    is
consistent   with  Delinquency  Rule   21(a).
Delinquency Rule 21(a) finds support  in  the
R.L.R.   decision.    Still,   I.J.   has   a
substantial argument that he should not  lose
his  constitutional right  to  a  jury  trial
merely  because it was untimely.   He  argues
that     Delinquency    Rule     21(a)     is
unconstitutional.
          As  the  State  recognizes  in  its
memorandum  addressing  I.J.s  petition,  the
          real issue in this case is how strictly
Delinquency  Rule  21(a) should  be  applied.
The  State  then points out that neither  the
State nor the trial court appear to have been
prejudiced  by I.J.s late demand for  a  jury
trial.  The State concludes its memorandum by
stating, [b]ecause of the importance  of  the
right  to  a  jury  trial  and  the  apparent
absence of prejudice to either the [S]tate or
the  trial court from I.J.s late demand,  the
[S]tate takes no position on his petition for
review.   The State therefore recognizes  the
importance of the juveniles right to  a  jury
trial  and advances no argument for a  strict
construction of Delinquency Rule 21(a).
          As  I have previously stated, I  am
confident that the Alaska Supreme Court would
be  protective  of a juveniles constitutional
right  to  a  jury  trial.   I  am  therefore
confident   that  the  supreme  court   would
liberally construe Delinquency Rule 21(a)  to
protect    that    right.     Certainly    in
circumstances  such  as the  case  before  us
where  the  State  and  the  court  are   not
prejudiced by a request for a jury trial, the
supreme  court would relax the  rule.   Given
the   Alaska   Supreme  Courts   history   of
protecting Alaskans constitutional rights and
the importance of a juveniles right to a jury
trial, I would predict that the supreme court
would allow a trial judge to deny a juveniles
right  to  a jury trial only for a  good  and
substantial reason.
_______________________________
  1 See AS 11.71.040(a)(2) and (d).

2See Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978).

1487 P.2d 27 (Alaska 1971).

2Id. at 32-33.

3Id. at 35.

4Id. at 35 & n.48.

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