PETITION FOR REVIEW

COMES NOW, Faith Myers, respondent below, and petitions this court for review of the Superior Court's June 20, 2003, denial of her Notice of Change of Judge, a copy of which is attached hereto as Exhibit A (page 2). Review is sought because postponement will result in an injustice that can not be corrected if appellate review is not obtained until after a final judgment has been entered.

FACTS

As relevant here, Ms. Myers was first committed to the Alaska Psychiatric Institute (API) pursuant to an Amended Petition for 30-Day Commitment filed February 25, 2003 (30-Day Commitment Petition), which was granted by Judge Christen on March 5, 2003. Also filed was a separate Petition for Court Approval of Administration of Psychotropic Medication (30-Day Forced Medication Petition), which was granted in a written order dated, March 14, 2003. The granting of the 30-Day Forced Medication Petition is the subject of Appeal No. S-11021 in this Court.

Towards the end of the 30 day commitment period, API filed a Petition for 90-Day Commitment (90-Day Commitment Petition) as well as a separate Petition for Court Approval of Administration of Psychotropic Medication (90-Day Forced Medication Petition). The 90-day petitions were filed under the same case number as the 30-day petitions. Ms. Myers pointed out that these petitions should all have been filed under separate case numbers and that technically, the court did not have jurisdiction over the original case number because it had been transferred to this court pursuant to Appellate Rule 203. See, Motion to Reconsider March 28, 2003 Order Re: Jurisdiction Over Case No. 03-277 PR, a copy of which is attached hereto as Exhibit B. Ms. Myers is currently being confined against her will at the Alaska Psychiatric Institute pursuant to the Superior Court's April 19, 2003 order granting the 90-Day Commitment Petition for which reconsideration was denied with respect to all but one issue on May 17, 2003.

On June 11, 2003, API filed a Petition for 180-Day Commitment (180-Day Commitment Petition) for which on June 13, 2003, the Superior Court issued a Notice of 180-Day Commitment Hearing. A timely Notice of Change of Judge was filed on June 19, 2003, which as mentioned above, was denied on June 20, 2003. Exhibit A, page 2.

Currently a jury trial is set to start June 27, 2003 on the 180-Day Commitment Petition, but Petitioner Ms. Myers believes this trial should be stayed pending determination of this Petition for Review and a motion to that effect is being filed with the Superior Court as well here because of the extremely short time frame.

QUESTION PRESENTED

The question presented for review is whether the Superior Court erred in denying Petitioner's Notice of Change of Judge. This turns on whether the 180-Day Petition commenced a new action or is a continuation of previous petitions for commitment.

REASONS FOR GRANTING REVIEW

If Petitioner is correct that the 180-Day Petition commenced a new action, then the currently assigned judge is "without power or jurisdiction to proceed further with the action." Hartford Accident and Indemnity Company v. State of Alaska, 498 P.2d 274, 275 (Alaska 1972) Perhaps even more important than the technical lack of power or jurisdiction is that unless review is granted the Court will be unable to afford Petitioner relief to which she might be entitled to. This places this Petition for Review squarely within Appellate Rule 401(b)(1) because it will "result in injustice because of impairment of a legal right."[1] Petitioner, Ms. Myers, also respectfully suggests that the same reasons this Court found it useful to establish a "bright-line" regarding whether the right to exercise a peremptory challenge exists in the re-filed suit situation in Staso v. Alaska Department of Transportation, 895 P.2d 988, 990 (Alaska 1995), also applies here. In other words, we need to know if the right attaches or not.

REASONS WHY THE DECISION IS ERRONEOUS

The resolution of the question of whether Ms. Myers has the right to exercise the right to a change of judge under Civil Rule 42(c) turns on whether the 180-Day Commitment Petition is a new action, or "is ancillary to and a continuation of the underlying action." Staso v. Alaska Department of Transportation, 895 P.2d 988, 990-1 (Alaska 1995). Staso also sets forth the standard of review:

[T]he trial court's interpretation and application of Alaska Civil Rule 42(c) is a question of law which this court must review de novo. . . . In deciding whether this case is the same "action" within the meaning of Civil Rule 42 . . . "[w]e are not bound by the superior court's resolution of questions of law, but instead must adopt the rule of law which is most persuasive in light of precedent, reason, and policy."

Id, at 990.

This Court, of course, also reviews matters of statutory construction de novo. State v. Strane, 61 P.3d 1284, n. 4 (Alaska 2003).

Under AS 47.30.730, a 30-day commitment proceeding is commenced through the filing of a petition. Under AS 47.30.740 a 90-Day Commitment Following 30-Day Commitment is commenced by filing a new petition. Similarly, under AS 47.30.770 a 180 day commitment is commenced by filing a petition. In all three cases, "A copy of the petition shall be served on the respondent, the respondent's attorney, and the respondent's guardian, if any." See AS 47.30.730(b) with respect to a 30-day commitment petition and AS 37.40.740(b) with respect to the 90 and 180 day commitment petitions.[2] That "new process must issue" in Staso, Id., at 990 was one of the three elements the Court relied on in finding that it was a new action there. In this case the exact same procedure for service of the subsequent petitions is required as for the initial petition. Thus, this element falls squarely within the rationale of Staso with respect to the service required to commence the action.

The other two elements relevant to the Court in Staso were that a new filing fee was required and the clerk issued a new case number. In the current situation, no filing fee is ever required so that element is inapplicable. Whether a new case number was issued begs the question. In other words, the precise issue here is whether a new case number should have been issued so the fact that the clerk may have erroneously failed to issue a new case number should not be relevant in this case, as opposed to the Staso case where it was relevant. Frankly, it would not appear that the factors important in Staso are all that helpful here even though the only one that is relevant here (service) favors Petitioner's position.

However, the statutory language of the commitment statutes strongly favors Petitioner's position. First, in all three cases, (i.e., 30, 90 and 180 day commitment petitions) the actions are commenced in precisely the same way -- by filing a petition. Second, with respect to a 180 day commitment, AS 47.30.770(a) refers to "the previous 90-day commitment," which makes clear that the 180-day commitment is a new commitment, separate and distinct from the "previous" 90-day commitment.[3]

In opposing the Notice of Change of Judge, API stated that AS 47.30.770(d)'s provision that "findings of fact relating to the respondent's behavior made at a 30-day commitment hearing . . . shall be admitted as evidence," showed that it was the same action. However, the opposite is true because if it was a continuation of the existing action, there would be no need to re-admit facts.

Most compelling in Petitioner Ms. Myers' view is that under AS 47.30.765, a party may appeal any civil commitment order. While there are a very few, limited and rare exceptions,[4] appeals may usually only be taken from a final judgment. Appellate Rule 202(a). "A final, appealable 'judgment' is one that, however denominated, 'disposes of the entire case and ends the litigation on the merits.'" Denali Federal Credit Union v. Lange, 924 P.2d 429, 431 (Alaska,1996). Reason and logic compels that if a 90-day Commitment Order "disposes of the entire case and ends the litigation on the merits," which is implied by it being appealable, a subsequent commitment petition must be a new action.

Moreover, AS 22.05.010(a) provides in pertinent part, "a party has only one appeal as a matter of right from an action or proceeding commenced in either the district court or the superior court." Thus, AS 47.30.765 provision that a party may appeal a 30-day commitment, a 90-day commitment and a 180-day commitment(s) makes even clearer the legislative scheme is that the separate petitions for each commitment commence separate actions.

In order to find that each commitment petition does not commence a separate action, this Court would have to find that AS 47.30.765 granting the right to appeal conflicts with AS 22.05.010(a)'s provision that a party has only one appeal as a matter of right in an action. However, this Court has ruled just the opposite: that "while we generally give preference to a specific statute over a more general one, we must harmonize the two statutes if possible[citations omitted],"[5] and "(T)he rule of construction favoring specific provisions over general provisions need not be invoked unless it is impossible to give effect to both provisions."[6] Not only is it possible to give effect to both provisions and avoid finding there is a conflict between the statutes, as set forth above, the overall statutory scheme with respect to the separate commitment petitions evinces the Legislature's intent that each petition commences a separate action. One has to actively construct a conflict between AS 47.30.765 and AS 22.05.1010(a) where none exists to find that each petition does not commence a separate action. Instead, as set forth above, the Court's rules for statutory construction provide just the opposite. To uphold the Superior Court's denial of Petitioner's Notice of Change of Judge necessarily implies that commitment proceedings may be appealed in contravention of the final judgment rule.

Petitioner respectfully suggests it is clear from the above that under the statutes and decisions of this Court, the 180-Day Commitment Petition commenced a separate action and the denial of the Notice of Change of Judge was in error.[7]

RELIEF REQUESTED AND REASONS FOR EXPEDITED CONSIDERATION

Petitioner Ms. Myers is requesting that the Superior Court's denial of her Notice of Change of Judge be reversed, and the Superior Court be ordered to assign a new judge to the case. In order to avoid confusion here and in the future, Petitioner Ms. Myers, also respectfully suggests the Court might consider ordering the clerk to assign separate case numbers to separate petitions under AS 47.30.

Petitioner Ms. Myers, implores the Court to act as expeditiously as possible. In Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552, 564 (1980), the United States Supreme Court reiterated that "commitment to a mental hospital produces 'a massive curtailment of liberty.'" In filing this Petition for Review, Ms. Myers was faced with the very difficult choice between trying to exonerate her right to a peremptory challenge to obtain a fair and impartial judge and her right to a speedy trial on the state's right to confine her. This Petition should be decided as expeditiously as possible so that Ms. Myers can have her trial in the shortest time frame possible consistent with her attempt to exercise her right to a change of judge as of right.

Dated this 22nd day of June, 2003 at Anchorage, Alaska.

LAW PROJECT FOR PSYCHIATRIC RIGHTS

By: __________________________

James B. Gottstein, Esq.

Alaska Bar No. 7811100

[1] It can be noted here that a denial of the similar right in Criminal Rule 25(d) is appealable under Appellate Rule 216(a)(2). Petitioner, Ms. Myers, respectfully suggests that the same considerations that give a criminal defendant the right to appeal from a denial of a Notice of Change of Judge also apply to augur in favor of granting this Petition for Review since the Petitioner here is in the custody of the state, confined against her will in API.

[2] AS 47.30.770(b) provides that with respect to a 180 day commitment petition, "The procedures for service of the petition. . . shall be as set out in AS 47.30.740."

[3] The Superior Court's recitation that it was denying the Notice of Change of Judge because "The [180-day] petition asks that an earlier commitment be extended" is clearly erroneous. Nowhere in the 180-Day Petition (Exhibit C), nor in the statutes pertaining to a 180-day commitment are such words, as "extended" or "continued" used. Instead, all of the commitment statutes refer to each commitment as being separate from the other commitments, such as AS 47.30.770(c) stating, "Successive 180-day commitments are permissible on the same ground and under the same procedures as the original 180-day commitment."

[4] Such as an appeal from a denial of a Criminal Rule 25(d) denial of Change of Judge pursuant to Appellate Rule 216(a)(2).

[5] Hiibschman By and Through Welch v. City of Valdez, 821 P.2d 1354, 1363 (Alaska,1991).

[6] National Bank of Alaska v. State, Dept. of Revenue, 642 P.2d 811, 818 (Alaska, 1982).

[7] In its June 19, 2003 Opposition to Effort to Change Judge, a copy of which is attached hereto as Exhibit D, at page 2, the state asserts that the 180-Day Commitment Petition is "like a child in need of aid proceeding, [where] the state seeks to extend its legal involvement under same proceeding initiated under the above case number." However, this is clearly not the case as Child in Need of Aid (CINA) cases under AS 47.10 are initiated by a single petition and, in stark contrast to the statutory scheme at issue here, the court may, under AS 47.10.080(c)(1)(A), order " one-year extensions of commitment that do not extend beyond the child's 19th birthday if the extension is in the best interests of the child." Thus in CINA cases under AS 47.10 subsequent commitments are continuations of a single action commenced by a single petition, while mental health commitments under AS 47.30 are separate actions commenced by separate petitions.