IN THE SUPREME COURT OF THE STATE OF ALASKA

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Case No.xxxxxxxxxxxxxx

xxxxxxxxxxxxxx,

xxxxxxxxxxxx0 CR.

xxxxxxxxxxxxx,

xxxxxxxxxxxxxCR.

xxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxx CR.

PETITIONERS

vs.

STATE OF ALASKA

RESPONDENT

Supreme Court No.

Court of Appeals No.

Trial Court Case No.

PETITION FOR HEARING

PRAYER FOR REVIEW

In the context of a discovery dispute in a criminal case, the court of appeals has issued an advisory opinion to the superior court, interpreting the "fair and just treatment in executive and legislative investigations" portion of Alaska's due process clause to apply to legislative investigations only.' This advisory opinion is improper in its function, wrong in analysis, and

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Article 1, Section 7, Alaska Constitution, "No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed."conflicts with previous decisions of this court. Petitioners seek review of this action.

Although admitting " . . . we have not examined the pleadings in the superior court, nor have we listened to the arguments presented [there]," the court of appeals has also improperly issued an advisory opinion to the superior court, suggesting that the minor's equal protection challenge to a state statute is not really an equal protection claim, but is instead a claim of 'selective prosecution', an argument the petitioners have not made. The adversarial posture of the court is revealed in the language of its advisory opinion - . . . we say that the defendants are claiming "selective prosecution." [Court of Appeals Order at 3]. Petitioners ask that this extraordinary prejudging of the merits of the defense claim, in a vacuum of fact or analysis, be vacated by this court. The rulings by the court of appeals were made prior to any evidentiary hearing, full briefing, argument by counsel, or decision by the superior court.

The court of appeals has usurped the role of the trial court by offering advisory opinions on matters which have yet to be fully litigated by the parties to this matter. Petitioners seek an order from this court vacating the court of appeals directions to the superior court, and allowing the trial court to proceed with the orderly process of discovery it had established.

I .

STATEMENT OF THE FACTS

Petitioners are all minors under the age of 18, who the state is prosecuting for A felonies, pursuant to A.S. 47.12.030, which purportedly requires that certain minors be tried as adults. The minors have challenged the constitutionality of this statute. The challenge is twofold. First, petitioners assert that the statute violates their right to due process under Article I, Section 7 of the Alaska Constitution:

THE MINOR'S DUE PROCESS CLAIM

1. Alaska's constitution contains a unique and broad guarantee of fair and just treatment in the course of executive investigations. Article 1, Section 7, Alaska Constitution.

2. Minors charged with criminal acts are entitled to the benefit this constitutional provision bestows.

3. The decision whether to treat such minors as adults has traditionally been a judicial function. Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 98 (1966); In re Gault, 387 U.S. 11 12, 30, 87 S.Ct. 1428, 18 L.Ed.2d 527, 538, 547-548 (1967); P. H. v. State, 504 P.2d 837 (Alaska 1972) The court has an independent jurisdictional role in determining which minors' will be prosecuted as adults. Hughes v. State 653 A.2d 241 (Delaware 1994); West Virginia v. Robert K. McL., 496 S.E.2d 887 (W.Va. 1997).

4. This judicial intervention is a necessary component of a minor's right to a fair and just investigation. O'Leary v.Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991)

5. Under the current statute, no judicial safety-net exists. West Virginia v. Robert McL., supra.; State v. Mohi, 904 P.2d 991 (Utah 1995).

6. As the statute is applied, the prosecution conducts da facto waiver hearings, considering factors beyond whether probable cause exists to support a grand jury indictment.

7. That in so doing, many cases wherein the evidence is sufficient to support a grand jury indictment are not presented to the grand jury.

8. These de facto waiver hearings are often conducted by non-attorney juvenile intake officers.

9. These decisions are standardless, arbitrary and vary from region to region within the state.

10. The effect of these arbitrary and standardless decisions is to create a racially disparate system, in which youths from rural communities, largely Alaska natives, are most often not waived into the adult system, while minors in urban areas are much more likely to be prosecuted as adults.

11. The minors here are entitled to a hearing on amenability to treatment, as other minors have received.

This constitutional claim is fact-based and dependent upon the proof to be adduced by the defense at the as yet unheard evidentiary hearing.The petitioners also assert that the statute, as it has been applied to them, violates their rights to equal application of the law, as guaranteed by Article I, Section 1 of the Alaska Constitution:

THE MINOR'S EQUAL PROTECTION CLAIM

1. As the statute is applied, it creates two classes of minors--those whose cases are transferred to the adult system, and those whose cases stay in the juvenile system.

2. This classification system is not based upon traditional prosecutorial discretion--that is, it is not based upon the evidence at the time the charging decision is made. Instead, the decision is based upon factors outside the traditional prosecutorial function. These factors include the minor's amenability to treatment.

3. There is no legitimate governmental interest in this disparate treatment, nor is there any rationale basis for this arbitrary exercise of prosecutorial discretion. The discretion which is being exercised is unrelated to the prosecution function and occurs in an arbitrary and standardless fashion.

4. Further, this unequal application of the statute has a racially disparate impact, because juveniles from rural areas of the state, who are predominately Native Alaskans, are almost never waived into adult court for eligible, nonhomicide charges, while juveniles who reside in urban areas, who are predominately non-native, are more frequently waived.

Again, these claims are factual, and the defense is entitled to a hearing to present evidence in support of these claims.

In the course of the litigation in the trial court, petitioners filed a request for discovery from the state. Petitioners were aware that the court of appeals recently rejected a due process challenge to the statute, stating that it had not been adequately presented. Nao v. State, ___ P.2d ___, 1998 WL 44049,*5 (Alaska App.1998). The statistical information the defense seeks would provide the information necessary to support its claims. The defense sought information which is exclusively in the possession of the state because it involved statutorily confidential documentation regarding juvenile cases. The state is obligated by law to maintain this information. See A.S.12.62.120. The state opposed the defense request to reveal these cases, and resisted the request to state whether there is a policy for applying the waiver statute. The state shields itself from review of what the petitioners claim to be an unconstitutionally disparate application of the law, by asserting confidentiality and privileges. The petitioners are thus in the position of being damned if they do and damned if they don't. They will be found to have inadequately presented their claim if prohibited from reviewing these confidential materials, and yet are being told the information is protected from disclosure by state held privileges and confidentiality.

The trial court (Judges Sanders and Card jointly, who had consolidated these cases for this litigation) issued a narrowly crafted order, requiring production of only a portion of the discovery which had been requested, and ordering that it be produced in camera. The court indicated that further orders regarding the discovery would issue after a review of these materials. (See Order of the Trial Court, attached.)

The state filed a petition for review of the trial court's narrow discovery order. The court of appeals granted the state's petition and despite admitting that "we have not examined the pleadings filed in the superior court, nor have we listened to the arguments presented in the superior court in support of those pleadings," the court summarily ruled on several important constitutional issues. These issues have not been fully briefed in the trial court, no evidentiary hearing has yet been held, no arguments have been heard and no rulings have issued.

II.

Statement of Points Relied on for Reversal

A. The order issued by the court of appeals has improperly decided a significant question of constitutional interpretation.

The court of appeals disposed of the minor's due process claim in a footnote to its order granting the state's petition. The court summarily held that the guarantee of "fair and just treatment" articulated in Article I, section 7 of the Alaska Constitution, applies only to legislative investigations, and cannot apply to discriminatory application, by the executive branch, of the statute challenged here. This interpretation of the due process clause by the court of appeals has decided a significant question of law, having substantial importance to the public and has not previously been decided by this court. Appellate Rule 304(b), Alaska Rules of Court. Additionally, and separately, this holding is in direct contradiction to decisions of this court. Appellate Rule 304(a), Alaska Rules of Court.

The very language of Article I, Section 7 belies the court of appeals' interpretation. The clause guarantees fair and just treatment in legislative and executive investigations. The original formulation of this portion of the due process clause, at the Constitutional Convention in 1956, was limited to legislative investigations. However, the phrasing was specifically amended to include fair and just treatment in executive investigations as well. See 2 Proceedings of the Alaska Constitutional Convention 1446 - 1469. While it is true that the focus of the discussion regarding this provision was on the desire to avoid the abuses of legislative investigations that occurred in the McCarthy era, this guarantee was amended and expanded to go beyond this promise.2

Petitioners allege that the state prosecutorial authority, a department of the executive, has violated this provision by arbitrarily and unjustly applying A.S.47.12.030. They seek to present evidence of this claim to the trial court. No decision of this court has limited the "fair and just treatment in legislative and executive investigations" to legislative investigations only. In fact, the court of appeals has previously recognized that the provision's application to criminal investigations has "never been determined." Folsom v. State, 734 P.2d 1015, 1018 (Alaska App. 1987). This court has interpreted this provision to apply to grand jury proceedings:

The courts of the state of Alaska have the constitutional duty to review actions by agencies of the state in order to ensure compliance with all provisions of the Alaska Constitution. Malone v.Meekins, 650 P.2d 351, 356 (Alaska 1982); K & L Distribs, v. Murkowski, 486 P.2d 351, 357-58 (Alaska 1971). This

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2 The original formulation of the due process clause stated, "The right of a person to due process of law shall not be infringed by use of the Legislature's investigative power" id. at 1446.

function applies not only to coordinate branches of government such as the legislature, supra, and the executive branch, K & L Distribs, but to component parts of the judiciary such as lower courts, and the grand jury.

O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163, (Alaska 1991)

This provision of the due process clause has also been held to apply to administrative hearings of the executive branch. For example, in Barcott v. State, 741 P.2d 226, 228 (Alaska 1987), this court held that the administrative hearing officer for the Department of Motor Vehicles (a branch of the executive) violated the appellant's right to due process when he failed to consider the inherent inaccuracy of the Intoximeter 3000 breath test in determining that a test reading of .10 satisfied the statutory requirements to revoke the appellant's license. This court has clearly not limited the "'fair and just treatment" clause to legislative actions alone.

The court of appeals summary opinion, in the context of a dispute over discovery, where the issue has neither been fully briefed nor argued in a factual setting in the trial court, has simply reached too far. This lack of judicial restraint should be supervised by this court. Appellate Rule 304(d), Alaska Rules of Court.

B. THE COURT OF APPEALS IMPROPERLY ISSUED AN ADVISORY OPINION REGARDING PETITIONERS EQUAL PROTECTION CLAIM

Petitioners assert that the application of the waiver statute to them violates their right to equal application of the law. They are entitled to litigate this factual claim. The court of appeals, without benefit of an evidentiary hearing, full briefing, argument, or a decision by the-trial court,, has directed the trial court to decide whether the minors are really alleging "selective prosecution," and has offered an advisory opinion regarding the merits of such a claim. This is simply not the role of an appellate court. This directive had decided a significant question concerning the interpretation of the Constitution of the State of Alaska, which has not been previously decided by this court. Appellate Rules 304(b) and (d), Alaska Rules of Court.

The minors assert that, as this statute is applied, it violates their equal protection rights. The theory of "unconstitutional as applied" has been readily recognized in Alaska. Javed v. Department of Public Safety, 921 P.2d 620, 625 (Alaska 1996). The minor's claim is that, as the state applies this statute, it creates two classes of minors - those who are prosecuted as adults and those who are not - and that these classifications are unrelated to traditional prosecutorial discretion. They further allege that these classifications have a discriminatory impact. This is a different theory than the court of appeals view of selective prosecution. The issue presents a factual claim which the minors are entitled to support with evidence at a hearing.

CONCLUSION

In essence, the court of appeals has issued two advisory opinions to the trial court, in a vacuum of evidence or argument. This lack of judicial restraint has unfairly and improperly denied the defendants their due process rights to a fair hearing in the court of original jurisdiction. Petitioners ask this court to vacate the order of the court of appeals, and allow the superior court to proceed with the orderly discovery process it had devised.

DATED at Anchorage, Alaska, May 11, 1998.

Respectfully submitted,

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3 Perhaps because the court of appeals has not read the briefing, it is unaware of the recent ruling of the Supreme Court, that selective prosecution claims are to be judged by "ordinary equal protection analysis." U.S. v. Armstrong 116 S.Ct.1480 (1996). The court's citation to the old Closson v. State standard for selective prosecution is therefore of questionable value; it is at least an issue for the parties to fully litigate.

In the Court of Appeals of the State of Alaska

State of Alaska,

Court of Appeals No.

Petitioner,

V. Order

Petition for Review

xxxxxxxxxxxxxxxxxxx, et al.,

Respondent. Date of Order: 4/24/98

Trial Court Case #

[Before: Coats, Chief Judge, and Mwmheimer and Stewart. Judges.] Upon consideration of the petition for review and the response, IT IS ORDERED:

(1) The petition for review is GRANTED.

(2) The superior court's discovery order of March I 1, 1998, is VACATED and the matter

REMANDED to the superior court for further consideration.The superior court's discovery order directs the State to produce (1) all internal memoranda regarding the interpretation or application of AS 47.12.030: (2) the names of all state emplovees who have made charging decisions in Third Judicial District cases involving minors; and (3 & 4) information to identify every case during the past three and a half years in which a minor either was charged or could have been charged with an unclassified felony, a class A felony, or first-degree arson.

Based on the pleadings submitted to us, we believe that the superior court needs to re-examine this discovery order. In particular, as explained below, the superior court needs to clarify the defendants' theory of litigation, and the court needs to re-examine the breadth of the disclosure it has ordered.

The litigation in this case centers upon AS 47.12-030(a). This statute provides that if a minor is at least 16 years old and is charged with an unclassified felony, a class A felony against a person, or first degree arson, the minor will be prosecuted as an adult. Although this statute is times referred to as an "automatic waiver" statute, this terminology is not accurate. AS 47.12-030 defines the extent and the limits of the superior court's juvenile jurisdiction. A separate statute, AS 47.12.100, defines the authority of the superior court to waive its juvenile jurisdiction over a specified minor.

Court of Appeals Order

State of Alaska v xxxxxxxxx et al.

Page 2

The defendants claim that AS 47.12.030(a) is unconstitutional. They concede that the statute is valid on its face. See Nao v. State, Opinion No. 1573 (Alaska App.; February 6, 1998); State v. Ladd, Opinion No. 1570 (Alaska App., January 16, 1998). However, they argue that the statute is unconstitutional "as applied" to them - that application of the statute to them violates their rights to equal protection and due process of law.

We acknowledge that we have examined only the pleadings filed in the present appellate litigation; we have not examined the pleadings filed in the superior court, nor have we listened to the arguments presented in the superior court in support of those pleadings. However, based on what we have read, the defendants' argument appears suspect.

The doctrine that a statute can be "unconstitutional as applied" normally refers to the concept that, even though a statute mav generally appear to be a valid exercise of legislative authority, the statute infringes protected constitutional rights when it is applied in a particular situation or to a particular category of people. See Javed v Department of Public Safety , 921 P.2d 620, 622, 625-26 Alaska 1996); Gilmore v. Alaska Worker's Compensation Bd., 882 P.2d 992,929 (Alaska 1994); Hood v. Smedley, 498 P.2d 120, 121-22 (Alaska 1972). But the defendants' present claim appears to be something different.

The three subsections of AS 47.12.030 declare that certain minors will be tried and punished as adults, depending upon what crime they are charged with and, under subsection (a), what crime they are ultimately convicted of Once a minor is arraigned on a particular offense, AS 47.12.030 does not appear to vest either the prosecutor or the judge with any discretion as to whether a minor will be tried as an adult or as a juvenile.

As previously discussed, a statute is normally described as "unconstitutional as applied" when the operation of that statute infringes protected constitutional rights when it is applied in particular situations or to a particular categorv of people. The defendants do not claim that they are members of a particular category of minors who have a constitutional right to be tried as juveniles. Nor do they claim that the legislature had no authority to designate certain offenses as meriting adult prosecution. Indeed, as we explained in Nao, supra, pp. 6-7, and in Ladd, supra, pp. 11-13, neither adults nor minors have a constitutional right to demand a particular punishment for a particular offense.In this respect, AS 47.12.030 differs materially from the statute discussed in State v. Mohi,

901 P.2d 991 (Utah 1995).

Court of Appeals Order

A-6939 State of Alaska v xxxxxxx et al.

Page 3

Instead, the defendants assert that their rights are being violated by the Department of Law's charging policies. As already described, all three subsections of AS 47.12.030 hinge on the charge that is brought against a minor. The defendants argue that the Department of Law uses impermissible criteria when deciding what charges to bring against minors.

It appears that the defendants are misusing the phrase "unconstitutional as applied" when they use this phrase to describe their claim. Reduced to its basics, the defendants' argument seems to be (1) that their potential punishment depends on what charge is brought against them, (2) the Department of Law determines the charge in its discretion, and (3) the Department, in exercising this discretion, is basing its decision on criteria that are constitutionally prohibited.

This argument is not peculiar to AS 47.12-0'30 or to proceedings against minors. This samea challenge could be made against any charging decision, whether the defendant is an adult or a minor. Using the defendants' terminology, one might say that any criminal statute could be "unconstitutional as applied" if the Department of Law made its charging decisions based on unconstitutional criteria. However, the courts normally do not use such terminology to describe the defendants' argument. Rather, we say that the defendants are claiming "selective prosecution".

The defendants have resisted this label, apparently because of the burden of pleading and proof that it imposes on them. See Closson v. State, 784 P.2d 661, 669-70 (Alaska App. 1989); Hart v. State , 702 P.2d 651, 659-663 (Alaska App. 1985); W. LaFave & J. Israel, Criminal Procedure (1984), §13.4(a), Vol. 2, p. 185. As explained above, we are not acquainted with all the pleadings and the arguments presented in the superior court. However, we urge the superior court to carefully examine the defendants' argument to see if it really fits within the doctrine of "unconstitutional as applied", or whether it more properly constitutes a claim of "selective prosecution". If the defendants have not articulated any claim other than selective prosecution, and if the defendants continue to disavow this claim, then there is seemingly no basis for the superior court's discovery order.

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The defendants also maintain that the State's charging criteria violate their right to "fair and just treatment" under Article 1, Section 7 of the Alaska Constitution. The "fair and just treatment" clause was intended to address the type of abusive practices used in legislative investigations during the McCarthy era. See 2 Proceedings of the Alaska Constitutional Convention 1446-1469 (January 7, 1956); State v. Gonzalez, 825 P.2d 920, 930 n.6 (Alaska App. 1992); Folsom v. State, 734 P.2d 1015, 1018 (Alaska App. 1987). The "fair and just treatment" clause has not been interpreted to apply to the routine operation of law enforcement. It appears that the defendants' reliance on the "fair and just treatment" clause lacks any legal basis.

Court of Appeals order

A- State of Alaska v xxxxxxxxx et al.

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Aside from clarifying the defendants' legal theory, the superior court should also re-examine the breadth of the disclosure that it has ordered. Certain portions of the discovery order presently under review appear to be over-broad, in that they order disclosure of matters that are undiscoverable.

Disclosure of legal research is not permitted under Criminal Rule 16(b)(8). The discovery order in this case directs the State to produce any and all memoranda relating to the interpretation or application of AS 47.12.030. This disclosure would seemingly consist primarily of legal opinions or legal research - documents that are protected from disclosure. Also, Alaska recognizes executive privilege. See Doe v. Alaska Superior Court, Third Judicial District , 721 P.2d 617(,Alaska 1986). That privilege requires a party seeking discovery on a matter covered by executive privilege to show, on balance, that the need for access to protected information outweighs the interest in preventing disclosure. See Capitol Information Group v. State, 923 P.2d 29, 36-37 (Alaska 1996). After reviewing the limited record before us, we are concerned that section (1) of the superior court's order should not have been issued, or should have been framed in a much more limited fashion.

Additionally, we note that section (I.) of the superior court's order seems to require production of all pertinent memoranda wherever they might be. It appears likely that many of the documents covered in section (I) reside in individual case files from across the entire state. Unless the State has an accurate state-wide issue-tracking indexing system, compliance with the discovery order will require a state-wide, case-by-case search of files. We ask the superior court to consider how difficult it would be for the court system to locate and produce every memorandum written by a judge, a law clerk, or a court administrator on the subject of the interpretation and application of AS 47.12.030. Before ordering the State to conduct such a large-scale effort, the superior court should be satisfied that the defendants have raised an arguably meritorious claim.

We have similar concerns regarding section(4) of the superior court's order. This section directs the State to produce the name and file number of every case during the last three and half years in which a minor could have been charged with an unclassified felony, a class A felony, or first-degree arson. Again. the court's order requires the State to engage in an intensive, state-wide, case-by-case search.

h. Before ordering this search, the superior court should satisfy itself that this expenditure of resources is justified.

For these reasons, we VACATE the superior court's discovery order. The court should re-examine its order, based on the considerations outlined here.

Entered at the direction of the Court.

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

STATE OF ALASKA,

Plaintiff,

Case No.

DISCOVERY ORDER

The court, having considered the pleadings concerning the defendants' motion for Discovery, hereby ORDERS that the state shall submit the following materials to the court for in camera inspection within 15 days of the clerk's distribution of this order:

1) all documents1 regarding the interpretation and/or application of AS 47.12-030, generated by the Dpartment of Law or the Department of Health and Human Services;

2) the name of each state employee who makes (or has made) charging decisions under AS 47-12-030 for the Third Judicial District at Anchorage. (If this decision can be made by any assistant district attorney working in Anchorage, that disclosure is adequate. Also, if the procedure for making the decision is one which requires the approval of a supervisor, the disclosure shall indicate that.);

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1 As used in this order "document" is a writing prepared for general use by state employees dealing with AS 47.12.030; it does not include a writing generated for a specific case when AS 47.12.030 was at issue.

1

3) the name and case number of any case in which a juvenile was charged pursuant to AS 47.12.030. This disclosure shall be limited to those cases prosecuted in Anchorage between September 4, 1994 and March 1, 1998 for Class A or more serious felonies;

4) the total number of cases in which a juvenile remained in the juvenile court system with charges for which the state could have proceeded in superior court based on AS 47.12-030. (Depending upon the number of cases in this category, the court will determine whether additional criteria for review and or disclosure must be established- For example, if there is a small number of cases in this category, it may be feasible for all of them to be reviewed. It is expected that the court will issue another order an this subject upon reviewing the information produced.).

All other discovery requests not addressed are hereby DENIED at this time.

DONE this ____ day of March 1998, at Anchorage, Alaska.

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