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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, DEPT. OF | ) |
| CORRECTIONS, | ) Court of Appeals Nos. A-9493, |
| ) A-9494, and A-9836 | |
| Appellant, | ) |
| ) Trial Court Nos. 1JU-05-149 CR, | |
| v. | ) 1JU-04-135 CR, and 1JU-04-992 CR |
| ) | |
| RICHARD E. LUNDY JR., | ) |
| RICHARD J. CALLAHAN, and | ) O P I N I O N |
| DONALD J. CHASE, | ) |
| ) [No. 2176 - July 18, 2008] | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court, First Judicial District,
Juneau, Larry R. Weeks, Judge.
Appearances: Dean J. Guaneli, Special
Assistant Attorney General, Marilyn J. Kamm,
Assistant Attorney General, Criminal
Division Central Office, and Talis J.
Colberg, Attorney General, Juneau, for the
Appellant. Daniel Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellee Lundy. No
appearance for Appellee Callahan. Brian T.
Duffy, Assistant Public Advocate, and Joshua
Fink, Public Advocate, Anchorage, for
Appellee Chase. Jason Brandeis, Anchorage,
for Amicus Curiae American Civil Liberties
Union of Alaska Foundation.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
The three defendants Richard E. Lundy Jr., Richard J.
Callahan, and Donald J. Chase were each convicted of offenses
related to the sexual abuse of a minor and sentenced to prison.
As part of the sentencing order in each case, and over the
objections of the State, the superior court ordered the
Department of Corrections to provide meaningful sex offender
treatment to each defendant while he is incarcerated. The State objected
to this provision of the sentencing orders because the Department of Corrections has
decided to stop offering sex offender treatment to offenders while they are
incarcerated. The Department concluded that in-prison treatment was not effective,
and that the Departments efforts should instead concentrate on after-prison treatment
consisting of an extensive evaluation of sex offenders shortly before they are
released from prison, followed by close supervision of these offenders during their
parole and probation.
The superior court overruled the States objections to
the disputed sentencing provision because the court concluded
that the Departments decision to abandon in-prison treatment of
sex offenders violated the three defendants right to treatment
under the Alaska Constitution. The State now appeals the
superior courts decision on two grounds.
First, the State argues that the superior court lacked
subject matter jurisdiction to adjudicate this issue in the
context of a criminal sentencing. Relying on prior decisions of
the Alaska Supreme Court, the State argues that the legality of
the Departments treatment decision must be litigated in a civil
lawsuit.
Second, the State argues that, even if the superior
court had the authority to decide the treatment issue as part of
a criminal sentencing, the superior court was wrong when it
concluded that the Departments decision violated the defendants
right to rehabilitation.
We agree with the State that the superior court lacked
subject matter jurisdiction to decide this issue as part of its
sentencing order in a criminal case. Accordingly, we need not
reach the issue of whether the Departments decision violated the
defendants constitutional right to rehabilitation.
Why we conclude the superior court did not
have authority to decide this issue in the
context of a criminal sentencing
In Rust v. State,1 the Alaska Supreme Court held that
prisoners in the custody of the Department of Corrections have
the right to receive treatment for their serious medical needs.2
The supreme court declared that this right stems from the parens
patriae obligation of the state government to adequately care for
those in its custody, as well as the prohibition against cruel
and unusual punishment found in the Eighth Amendment to the
United States Constitution.3
Three months later, in Abraham v. State,4 the supreme
court extended Rust by holding that article 1, section 12 of the
Alaska Constitution guarantees prisoners the right to receive
rehabilitative treatment.5 (In Abraham, the issue was the
defendants right to receive treatment for his alcoholism.)
In the present appeal, the superior court relied on
this constitutional right to receive rehabilitative treatment as
its authority for issuing the sentencing orders at issue in this
appeal the sentencing orders that directed the Department of
Corrections to provide in-prison sex offender treatment to the
three defendants.
But the superior courts action contravenes another
aspect of the Alaska Supreme Courts decision in Rust.
After the supreme court issued its initial opinion in
Rust, the State petitioned for rehearing. In its petition, the
State asked the court to clarify the procedures to be followed
when a prisoner wishes to assert that the Department of
Corrections is denying his constitutional right to treatment.
The supreme court responded with a separate opinion on rehearing:
Rust v. State (II).6
In Rust II, the supreme court declared that issues of
prisoner treatment should not be litigated under Alaska Criminal
Rule 35(a), the rule that governs motions for correction of a
sentence.7 Instead, the supreme court directed that all future
proceedings in Rusts case [should] be conducted as if Rust had
instituted an independent civil action [against the Department of
Corrections] seeking treatment.8
In an accompanying footnote, the supreme court declared
that it would await a more appropriate occasion to decide whether
such claims could be pursued in a proceeding instituted under
[former] Criminal Rule 35(b) that is, in a post-conviction
relief proceeding.9 But as this court explained in Hertz v.
State,10 subsequent cases in this area have clarified that
litigation dealing with a defendants conditions of imprisonment
is civil in nature, and that appeals in such litigation must go
to the supreme court, not this court.11
Our decision in Hertz is an implicit rejection of the
supreme courts earlier suggestion in Rust that claims involving
the right to treatment might potentially be raised in a petition
for post-conviction relief. Under this courts jurisdictional
statute, AS 22.07.020(a), appeals in post-conviction relief cases
come to this court, not the supreme court a result that is the
opposite of the rule we recognized in Hertz. Thus, we conclude,
or rather confirm, that the proper method for litigating right-to-
treatment claims is the procedure adopted by the supreme court in
Rust II: an independent civil action against the Department.
In the present case, when the State objected to the
superior courts contemplated sentencing order, the superior court
acknowledged that Rust appeared to require separate civil
litigation. However, the court concluded that compliance with
Rust would be unduly cumbersome and time-consuming. In
particular, the superior court feared that, by the time a
prisoner was able to establish a need for rehabilitative
treatment in a civil lawsuit, the prisoners sentence of
imprisonment might well be over and, thus, the prisoner would
never receive the rehabilitative treatment guaranteed by the
Alaska Constitution.
This consideration might be a reasonable objection to
the supreme courts holding in Rust II but it does not give the
superior court the authority to ignore the supreme courts
holding. Moreover, in terms of practical reality, there is much
to commend the supreme courts resolution of this procedural
issue.
For example, in the present case, the underlying legal
question does not hinge on the particular treatment needs of the
three defendants whose names appear in the caption. Rather, the
question is whether the Department of Corrections can properly
decide to cease providing in-prison sex offender treatment for
any and all defendants. This is the kind of issue that should be
litigated as a class action, rather than being litigated on a
case-by-case basis at the sentencing hearings of individual sex
offenders so that both the Department and the prisoners receive
one consistent judicial answer to the question posed.
In addition, the superior courts decision to resolve
this issue in separate, individual sentencing proceedings has
another disadvantage: the superior courts directive to the
Department will end when these three specific defendants leave
prison or, for some other reason, are no longer interested in
enforcing the courts decision.
In the present case, one of the defendants Donald
Chase has already announced that he has no intention of seeking
enforcement of the superior courts order. In fact, Chase does
not wish to receive sex offender treatment while he is
incarcerated. (In other words, although Chase is an appellee in
this case, he is in fact aligned with the State on this issue.)
And this court was informed, shortly before oral
argument in this case, that another of the defendants Richard
Lundy has finished serving his sentence and has been released.
Thus, the superior courts order is moot in his case.
This leaves only one defendant Richard Callahan.
According to what this court was told at oral argument, Callahan
wishes to enforce the superior courts order but only if it means
that he can stay at Lemon Creek (i.e., the prison in Juneau). If
the Department were to establish a sex offender treatment
facility at another prison, and if the Department were then to
transfer Callahan to that other prison to comply with the
superior courts order, Callahan would apparently waive his right
to treatment and fight the transfer.
All of this merely highlights the underlying problem
with the superior courts approach. Even if all three defendants
wanted to enforce the superior courts order, these three
defendants would eventually complete their sentences and be
released. There would then be no one with standing to insist on
enforcement of the superior courts order. If, indeed, the
superior court is correct that sex offenders have a
constitutional right to treatment while they are in prison, the
way to enforce that right is to have an ongoing civil judgment
against the Department.
For these reasons, we agree with the State that, under
Alaska law, the underlying issue presented in this case the
issue of whether defendants have a constitutional right to
receive sex offender treatment while in prison must be litigated
in a civil lawsuit brought against the Department of Corrections.
The superior court had no authority to litigate this issue in the
three defendants sentencing proceedings.
Because the superior court had no subject matter
jurisdiction to decide this issue, the superior courts directive
to the Department of Corrections is void.12 The contested
provision must be deleted from the three defendants criminal
judgments.
Why we uphold the superior courts order
directing the Department of Corrections to
allow Donald Chase to receive supplemental
sex offender treatment from Chases chosen
therapist after he is released on probation
There is one other issue presented in this case. At
the sentencing of Donald Chase, the superior court ordered the
Department of Corrections to allow Chase to pursue private sex
offender treatment (at his own expense) with Dr. Roger Abernathy.
The State challenges this order because Dr. Abernathy is not
among the Department of Corrections authorized therapy providers.
The State argues that the Departments own efforts to meaningfully
treat sex offenders who are on probation will be compromised if
sentencing courts allow defendants to choose their own treatment
providers.
It is possible that Dr. Abernathys treatment regime may
not match the Departments expectations or wishes. But the Alaska
statutes provide a sentencing court with broad authority to
fashion conditions of probation.13 In particular,
AS 12.55.100(a)(5) grants a sentencing court the authority to
order a probationer to participate in or comply with the
treatment plan of an inpatient or outpatient rehabilitation
program specified by ... the court ... [if that treatment] is
related to the defendants offense or to the defendants
rehabilitation.
Here, the superior courts treatment order is obviously
directed to Chases offense and his rehabilitation. We therefore
conclude that superior court had the authority to impose this
condition of probation, even over the Departments objections.
We acknowledge that, even though the superior court has
broad authority over the conditions of a defendants probation,
another governmental body the Board of Parole controls the
conditions of a defendants parole. It is possible that the
contested condition of Chases probation might present a problem
at some point in the future if Chase is released on concurrent
probation and parole.14 In that event, either the State or Chase
can ask the superior court to revisit this issue.
Conclusion
We VACATE the provisions of the three criminal
judgments that direct the Department of Corrections to provide
sex offender treatment to the defendants while they are in
prison. We AFFIRM the condition of probation in Chases case that
allows him to pursue sex offender treatment with Dr. Abernathy at
his own expense.
_______________________________
1 582 P.2d 134 (Alaska 1978).
2 Id. at 143.
3 Id. at 139-42.
4 585 P.2d 526 (Alaska 1978).
5 Id. at 531-33. Article I, section 12 of the Alaska
Constitution states: Criminal administration shall be based upon
... the need for protecting the public, community condemnation of
the offender, the rights of victims of crimes, restitution from
the offender, and the principle of reformation.
6 584 P.2d 38 (Alaska 1978).
7 Id. at 39. See also LaBarbera v. State, 598 P.2d 947, 949
(Alaska 1979) (holding that right-to-treatment claims could not
be raised in a motion for modification of a criminal sentence).
8 Rust II, 584 P.2d at 39.
9 Id. at 39 n.3.
10 81 P.3d 1011 (Alaska App. 2004).
11 Id. at 1014.
12 See State v. Combs, 64 P.3d 135, 138 (Alaska App.
2003); State v. Superior Court, 40 P.3d 1239, 1241-43 (Alaska
App. 2002).
13 See, e.g., AS 12.55.015(a) and AS 12.55.080.
14 See AS 33.20.040(c) (providing for concurrent release
on probation and parole).
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