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

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


         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 @



                                                                  Court of Appeals No. A-12943  

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


                                                                             O P I N I O N  


                                   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,  



                 Judge ALLARD.  

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

                        Alaska Statute 22.20.022 provides for peremptory challenges to judges.                                                 


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  



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  



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.  



            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  


                                               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  



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  



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.  



                    Thesuperior court's denialofBeier'speremptorychallengeofJudgeSaxby  




                                                            -  6 -                                                       2587

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