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          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CHRISTIAN LYNN BEIER,
                                                   Court of Appeals No. A-12943
                         Appellant,               Trial Court No. 3AN-15-9578 CR

                  v.
                                                            OPINION
STATE OF ALASKA,

                         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,
           Judges.

           Judge ALLARD.
              Alaska Statute 22.20.022 provides for peremptory challenges to judges.
Alaska Criminal Rule 25(d) implements this right in criminal cases.1 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).2
              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.3) 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.
   3
      Under Criminal Rule 40(a), weekends and holidays are excluded from calculation
when a prescribed time period is less than seven days.

                                           –2–                                        2587

              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

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
concerns.”
                 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

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.7 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.8
             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

             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.


      Conclusion
             The superior court’s denial of Beier’s peremptory challenge of Judge Saxby
is REVERSED.




                                        –6–                                       2587

