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Brueggeman v. Ashman (1/29/99), 973 P 2d 569

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).