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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


LOREN J. LARSON JR.,
                                                      Court of Appeals No. A-12725
                            Petitioner,               Trial Court No. 4FA-01-511 CI

                     v.
                                                             O P I N I O N
STATE OF ALASKA,

                            Respondent.               No. 2574 — November 9, 2017


              Original Application for Relief from the Superior Court, Fourth
              Judicial District, Fairbanks, Niesje J. Steinkruger, Judge.

              Appearances: Loren J. Larson Jr., in propria persona, Wasilla,
              for the Appellant. Eric A. Ringsmuth, Assistant Attorney
              General, Office of Criminal Appeals, Anchorage, and Jahna
              Lindemuth, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge MANNHEIMER.


              This case arises from an original application for relief that was filed last
year by Loren J. Larson Jr. In November 2016, this Court issued an order denying



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
Larson’s original application, and Larson now seeks rehearing of our November 2016
decision.
              When this Court denied Larson’s original application for relief, we did so
in an unpublished order. Nevertheless, we have decided to formally publish our reasons
for allowing Larson to file his petition for rehearing, because our decision involves an
interpretation of Alaska Appellate Rule 404(f).
              Rule 404(f) declares that a litigant may not file “a petition for rehearing of
the denial of an original application”. As we explain in this opinion, despite the wording
of this rule, we conclude that Larson is entitled to seek rehearing of our decision denying
his original application for relief.
              However, the remainder of our decision on rehearing — i.e., our analysis
of Larson’s specific arguments on rehearing — will be of little interest to anyone other
than Larson and the State of Alaska, so we will answer Larson’s arguments in an
unpublished order.


       The procedural background of this litigation


              Last year, Loren J. Larson filed the current appellate action — an original
application for relief under Alaska Appellate Rule 404. In this original application,
Larson asked this Court to re-open the proceedings in one of his earlier appeals: Larson
v. State, File No. A-11835 — an appeal that we decided in January 2016. 1
              We denied Larson’s original application for relief in a five-page order
issued on November 21, 2016. Larson now seeks rehearing of that November 21st
decision.



   1
       See Larson v. State, unpublished, 2016 WL 191987 (Alaska App. 2016).

                                           –2–                                         2574

       Why Larson is entitled to seek rehearing of our decision denying his
       original application for relief


              Larson’s right to seek rehearing of our decision is seemingly cast in doubt
by Alaska Appellate Rule 404(f), which declares that “a petition for rehearing of the
denial of an original application may not be filed.”
              Although this rule appears to prohibit a party from seeking reconsideration
of any order denying an original application, we conclude (for reasons we are about to
explain) that Appellate Rule 404(f) applies only to orders that deny an original
application without reaching the merits of the petitioner’s claims — and that the rule
does not apply in cases where the appellate court issues a decision on the merits of the
petitioner’s claim, but denies relief.
              Original applications for relief are requests for an appellate court to exercise
its power of discretionary review in cases where the party has no right of appeal and no
right to petition for review under Appellate Rule 402. 2
              Procedurally, original applications are handled very much like petitions for
review under Appellate Rule 402 — because, in both instances, a party is asking the
appellate court to exercise its power of discretionary review. The appellate court
considers the petition or application (and any opposition), and then the court decides
whether it will (1) deny the petition or application without reaching the merits of the
petitioner’s claim or, instead, (2) grant the petition or application, in the limited sense of
agreeing to resolve the merits of the petitioner’s claim — but without any guarantee that
the court’s ultimate resolution of the claim will favor the petitioner. 3



   2
       See Appellate Rule 404(a)(1).
   3
       See Appellate Rules 403(f) and 404(e).

                                            –3–                                          2574

              If the appellate court decides to grant a petition for review or an original
application, the court will often call for fuller briefing of the petitioner’s claim. But there
are instances where the court “grants” the petition or application (in the sense of agreeing
to reach the merits of the petitioner’s claim) and then, without further briefing, issues an
order resolving the merits of the case. In those circumstances, even when the court’s
order resolves the case by denying the relief that the petitioner has requested, the petition
or application has still technically been “granted”, in the sense that the court has reached
the merits of the petitioner’s claim.
              Like Appellate Rule 404(f) (which deals with original applications), there
is a provision of Appellate Rule 403 — specifically, Rule 403(g) — which declares that
when an appellate court denies a petition for review, “a petition for rehearing of the
denial of [the] petition for review may not be filed”. But Appellate Rule 403(g) has not
been construed to prohibit petitions for rehearing in cases where an appellate court grants
the petition, reaches the merits of the petitioner’s case, and denies relief. Rather, the
Alaska Supreme Court has allowed rehearing in such cases — i.e., cases where a petition
for review was granted but later, upon consideration of the merits of the case, the court
denied the relief that the petitioner was requesting.
              For example, in State v. Glass, 583 P.2d 872 (Alaska 1978), the supreme
court granted the State’s petition for review of a suppression ruling issued by the trial
court, but when the supreme court reached the merits of the case, the supreme court
affirmed the trial court’s ruling — i.e., the supreme court issued a decision denying the
relief that the State had requested. The State then sought rehearing. Instead of declaring
that the State was barred from seeking rehearing, the supreme court considered the
State’s arguments and issued a formal opinion on rehearing: State v. Glass, 596 P.2d 10
(Alaska 1979). Thus, the supreme court granted the State’s petition for rehearing even
though, in its first opinion, the court had denied the State’s request for relief.

                                             –4–                                          2574

              We conclude that Appellate Rule 404(f) should be construed the same way.
Appellate Rule 404(f) declares that no party may seek rehearing “of the denial of an
original application”. We interpret this rule to mean that when a party files an original
application for relief and the appellate court votes to deny the application without
reaching the merits of the party’s claim, the parties are prohibited from seeking rehearing
of the court’s decision. But when the appellate court takes the case and resolves the
merits of the petitioner’s claim by denying relief, the petitioner (or the respondent, for
that matter) can seek rehearing of the appellate court’s decision on the merits.
              We reach this conclusion for two reasons.
              First, as just explained, the Alaska Supreme Court has allowed petitions for
rehearing in analogous circumstances in petition for review cases, even though Appellate
Rule 403(g) contains a corresponding prohibition on petitions for rehearing “of the
denial of a petition for review”.
              Second, when an appellate court resolves the merits of a legal controversy
in an opinion or other final order, there appears to be no good reason to insulate the
court’s decision from rehearing simply because the case came to the court as a petition
for review or as an original application for relief, rather than as an appeal. Having
declared the law and resolved the merits of the controversy, the appellate court has the
same interest in making sure that its decision is not based on a material misunderstanding
of the facts or the law.
              The remaining question in Larson’s case, then, is whether this Court’s order
of November 21st — our “Order Denying Original Application” — was a decision on
the merits of Larson’s claim. There is little doubt that it was. Our order is five pages
long; it contains both a detailed description of the relevant procedural history of Larson’s
case and an explanation of why this Court concluded that Larson was not entitled to the
relief that he was seeking.

                                           –5–                                         2574

             For these reasons, we conclude that Larson is entitled to seek rehearing of
this Court’s order of November 21, 2016, denying his original application for relief.


      The merits of Larson’s arguments on rehearing


             As we explained at the beginning of this opinion, Larson’s arguments on
rehearing, and our analysis of those arguments, will be of little interest to anyone other
than Larson and the State of Alaska. We have therefore decided to answer Larson’s
arguments in an unpublished order.




                                          –6–                                        2574

