Ozenna v. State

921 P.2d 640, 1996 Alas. App. LEXIS 29, 1996 WL 419002

• Court: Court of Appeals of Alaska
• Decided: July 23, 1996
• Docket: A-06265
• Status: Published

Opinions

Order¹

The state has moved for full-court reconsideration of the single-judge order entered on June 28, 1996, granting Ozenna’s motion to accept his late-filed notice of appeal. We grant the state’s motion for full-court reconsideration and conclude that the motion to accept Ozenna’s late notice of appeal should be granted for the reasons stated in the June 28 single-judge order.

In its motion for reconsideration, the state argues that Appellate Rule 502(b) should be narrowly construed to authorize appellate courts to extend a time period “only within the limits permitted by Appellate Rule 521.” The state argues that this narrow interpretation is necessary to reconcile the two rules and give effect to chapter 79, section 21, SLA 1995 — the statute enacting the current form of Appellate Rule 521.

When Appellate Rule 502(b) was adopted, however, Appellate Rule 521 specified no time limits governing an appellate court’s authority to extend the time for filing a notice of appeal. Accordingly, in originally promulgating Rule 502(b), the Alaska Supreme Court could not have intended to subject the powers granted therein to any time limitation stated in Rule 521.

The state’s request for a narrowing interpretation of Rule 502(b) thus seems directed at implementing legislative intent in enacting chapter 79, section 21, SLA 1995, rather than at reflecting the supreme court’s intent in adopting Rule 502(b). For this reason, the request is in effect an argument that chapter 79, section 21, SLA 1995 should be construed to have impliedly amended Rule 502(b).

But the Alaska Supreme Court has made it clear that the doctrine of implied repeal or amendment does not apply to legislation affecting procedural rules adopted by the court. Because article IV, section 15 of the Alaska Constitution expressly gives rule-making power to the supreme court rather than the legislature, the supreme court has held that a statute dealing with a procedural matter will not alter a conflicting rule of court unless the statute is enacted with the stated purpose of changing that rule. Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1047 (Alaska 1981); Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963). As the court said in Nolan, “we need not look to the legislature’s intentions to discern whether it has attempted to prescribe a different procedure than that contained in a court rule, unless the legislature has acted in the requisite manner[.]” 627 P.2d at 1046.

In enacting chapter 79, section 21, SLA 1995, the legislature specifically stated its intent to amend Appellate Rule 521. It did not specifically state a similar intent to amend or limit Appellate Rule 502. We assume that the legislature’s failure to address Rule 502 was an oversight and that it would have intended the provisions of Rule 521 to govern over those of Rule 502.² However, Nolan and Leege preclude this court from relying on our perception of probable legislative intent as a basis for construing Rule 502 to have been amended.

For the reasons stated in this court’s order of June 28, 1996, we grant the motion to accept Ozenna’s late notice of appeal.

Entered by direction of the court.

1 . Published pursuant to the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).

2 . For this reason, in ruling on a request to accept a late notice of appeal, we think it highly relevant to consider the restrictions stated in the amended version of Rule 521 and to exercise restraint in light of those restrictions. In the present case, we do not exercise our authority under Rule 502(b) lightly. It appears highly likely to us that Ozenna is entitled to restoration of his appellate rights as a constitutional matter. Because the state has not challenged, or even alleged any desire to challenge, Ozenna’s factual assertions on their merits, we see little purpose to be served in requiring him to pursue a costly and time consuming post-conviction relief action to assert his right to appeal.