from the Superior Court, Third Judicial District, Trial Court
No. 3AN-15-9578 CR Anchorage, Kevin Saxby and Jack W. Smith,
Soberay, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
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,
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).
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
now appeals the denial of his peremptory challenge under
Alaska Appellate Rule 216(a)(2).
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).
reasons explained here, we accept the court system's
position that the shorter time limit specified in the
Anchorage standing order is unenforceable.
State's argument on appeal
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.
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 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."
Rule 46(a) grants authority to the presiding judge of a
judicial district to promulgate such administrative orders,