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Holden v. State (8/15/2008) ap-2179

Holden v. State (8/15/2008) ap-2179

                             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


ERIC J. HOLDEN, )
) Court of Appeals No. A-10073
Appellant, ) Trial Court No. 3PA-05-1569 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2179 August 15, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:   Eric  J.  Holden,  in  propria
          persona,  Wasilla, for the Appellant.   Susan
          S.  McLean, Chief Assistant Attorney General,
          Criminal  Division, Anchorage, and  Talis  J.
          Colberg,  Attorney General, Juneau,  for  the
          Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          This  case  is  an  appeal from  the  decision  of  the
superior  court in an administrative appeal (i.e., an  appeal  to
the  superior  court from the final decision of an administrative
agency).  Under AS 22.05.010(c) and Alaska Appellate Rule 202(a),
appeals  of  this  nature are to be taken to the  Alaska  Supreme
Court.
          The  Appellant,  Eric  J. Holden, initially  filed  his
appeal  in  the  supreme court.  Soon after, however,  the  State
filed  a motion seeking transfer of Holdens appeal to this Court.
The  States motion was granted by a single justice of the supreme
court, and Holdens appeal was then docketed in this Court.
          The  transfer  of  Holdens appeal to this  Court  by  a
single member of the supreme court does not relieve this Court of
its  duty  to  examine  whether we have  jurisdiction  to  decide
Holdens appeal.  As we noted in Higgins v. Briggs, 876 P.2d  539,
541 (Alaska App. 1994), an appellate court has both the authority
and  the  obligation  to determine whether particular  litigation
falls within its subject-matter jurisdiction.
          As  we  explain more fully in this opinion, we conclude
that  we have no jurisdiction to decide Holdens appeal, and  that
we  must  transfer Holdens case to the appellate court that  does
have  jurisdiction  to  decide his appeal:   the  Alaska  Supreme
Court.

     The background and procedural history of Holdens case
     
               In  1977,  Eric  J. Holden was  convicted  of
     assault with intent to commit rape under Alaskas former
     criminal  code.  The Alaska Supreme Court affirmed  his
     conviction  in  Holden v. State, 602 P.2d  452  (Alaska
     1979).
               In June 2005, the Alaska Department of Public
     Safety  notified Holden that the Department viewed  his
     offense  as  an aggravated sex offense for purposes  of
     the Sex Offender Registration Act (AS 12.63)  and that,
     as a consequence, Holden was required to register as  a
     sex  offender  for  life and report  quarterly  to  the
     Department.  See AS 12.63.020(a)(1)(A).
          After  he received this notification,  Holden
filed  an appeal to the Commissioner of Public  Safety.
In   this  appeal,  Holden  contested  the  Departments
conclusion  that  his  offense was  an  aggravated  sex
offense   within  the  meaning  of  the  Sex   Offender
Registration Act.
          Holdens argument was based on the wording  of
AS  12.63.100(1),  the statute that defines  aggravated
sex  offense.  In June 2005, the pertinent  portion  of
that  statute  subsection (C)  declared that  the  term
aggravated sex offense meant
     
     a crime, or an attempt ... to commit a crime,
     under  AS 11.41.410 [the first-degree  sexual
     assault  statute], AS 11.41.434  [the  first-
     degree sexual abuse of a minor statute], or a
     similar law of another jurisdiction[.]
     
               Holden  noted that his offense  was
     committed  before  Alaskas  current  criminal
     code  took  effect.   That  is,  he  was  not
     prosecuted  or convicted under AS  11.41.410,
     but  rather under the now-repealed former  AS
     11.15.160  (assault with intent  to  kill  or
     commit  rape or robbery).1  For this  reason,
               Holden argued that his offense did not
     qualify  as an aggravated sex offense  within
     the statutory definition just quoted.
               On   July  28,  2005,  the   Deputy
     Commissioner  of  Public  Safety   issued   a
     written  decision rejecting Holdens  argument
     and   affirming   the   Departments   initial
     determination  that Holdens  offense  was  an
     aggravated  sex offense for purposes  of  the
     registration  act.   In essence,  the  Deputy
     Commissioner concluded that even  though  the
     definition  of aggravated sex offense  listed
     only    two    Alaska    criminal    statutes
     (AS   11.41.100   and  AS   11.41.434),   the
     definition  actually applied to  all  persons
     convicted  of  violating any Alaska  criminal
     statute if the persons underlying conduct was
     similar  to the conduct proscribed by  either
     AS 11.41.100 or AS 11.41.434.
          Twenty  days later, Holden appealed
the  Commissioners decision to  the  superior
court.   See  AS 22.10.020(d)-(e) and  Alaska
Appellate  Rule 601(b), which  authorize  the
superior court to hear appeals from the final
decisions of administrative agencies.
          While   Holdens   appeal   to   the
superior   court  was  pending,  the   Alaska
Legislature   amended   the   definition   of
aggravated  sex offense.  See SLA  2006,  ch.
14,    8.   The  2006  amendment  added   the
following language to AS 12.63.100(1)(C):

a crime, or an attempt ... to commit a crime,
under  AS 11.41.410 [the first-degree  sexual
assault  statute], AS 11.41.434  [the  first-
degree sexual abuse of a minor statute], or a
similar  law  of  another jurisdiction  or  a
similar provision under a former law of  this
state[.]

In  other words, the legislature amended  the
statute  to make the definition cover  people
in Holdens situation.
          In    May   2006,   following   the
enactment  of  this  amended  definition   of
aggravated  sex  offense, the superior  court
issued its decision in Holdens administrative
appeal.  Based on the recent amendment to the
statute,  the  superior  ruled  that  Holdens
issue  on  appeal  was now  moot.   In  other
words,  the court concluded that it  did  not
matter   whether  the  statute,  as  formerly
written,  might  not have applied  to  Holden
because  the  statute  as  currently  written
clearly did apply to him.  On this basis, the
superior   court  affirmed  the   Departments
decision.
          In  addition,  the  superior  court
denied  Holdens  request for  court-appointed
counsel    to   help   him   prosecute    the
administrative appeal.
          Following these two adverse rulings
(the ruling that Holdens claim was moot,  and
the  denial  of his request for an attorney),
Holden  appealed  the superior  courts  final
decision  to the Alaska Supreme  Court.   See
AS  22.05.010(c)  and Alaska  Appellate  Rule
202(a), which specify that the supreme  court
is the proper appellate court to hear appeals
from  the  final  decisions of  the  superior
court in administrative appeals.
          Holdens appeal was docketed in  the
supreme  court as File No. S-12389.  However,
shortly  after  Holdens appeal was  docketed,
the  State  filed  a motion to  transfer  his
appeal to this Court.
          In  its  motion, the  State  argued
that  this  Court  (rather than  the  supreme
court)  had jurisdiction over Holdens appeal.
To  support this jurisdictional argument, the
State relied on this Courts decision in Beltz
v.  State,  Alaska  App.  Memorandum  Opinion
No. 5079 (June 14, 2006), 2006 WL 1627913.
          In  Beltz, this Court ruled that we
had   jurisdiction  to  resolve  a   question
concerning   the  application  of   the   Sex
Offender Registration Act that was raised  in
the  context of a criminal prosecution,  even
though  we  acknowledged  that  sex  offender
registration  is  a  civil regulatory  matter
rather  than a criminal punishment.  2006  WL
1627913  at  *1-2  (lead  opinion)   &   *3-5
(Mannheimer, J., concurring).
          Based  on  this Courts decision  in
Beltz,  the State took the position that  the
supreme  court  was not the proper  court  to
hear  Holdens  appeal of the superior  courts
decision  in  this  case,  and  that  Holdens
appeal  should be transferred to this  Court.
Holden opposed the States motion, but he  was
representing himself and he was obviously  at
a  disadvantage when trying to respond to the
States fairly technical argument.  The States
motion was granted by a single justice of the
supreme   court,   and   Holdens   case   was
transferred to this Court.
          When  Holdens case was sent to  our
Central  Staff  for  screening  and  judicial
assignment,  the staff attorney who  reviewed
Holdens  case  perceived  the  jurisdictional
problem and brought it to our attention.   We
then ordered the parties to file supplemental
briefs   on   this  jurisdictional  question.
Holden did not respond to our order, but  the
State filed a six-page brief on this issue.
          In  its brief, the State has backed
away  from  its  earlier position  that  this
Court  clearly is the court to  hear  Holdens
appeal.  Instead, the State acknowledges that
there  are  reasons to believe  that  Holdens
appeal  should  be  decided  by  the  supreme
court.  The State suggests, however, that  it
would  be  better  to have a  sole  appellate
court  decide all issues relating to the  sex
offender registration laws.  For this reason,
the  State  asks us to issue  an  opinion  or
order identifying which appellate court  this
Court  or  the  Alaska Supreme Court   should
handle these legal duties.
          As  we  explain in the next section
of this opinion, the States proposal (to have
one   appellate  court  decide   all   issues
relating  to  sex  offender registration)  is
inconsistent    with   Alaska    law.     The
jurisdiction  of  our  states  two  appellate
courts  is not defined by the types of  legal
issues  presented in an appeal.  Rather,  the
jurisdiction of the two appellate  courts  is
defined by the type of proceeding that  gives
rise  to  the  appeal.  For this reason,  the
supreme court sometimes has jurisdiction over
appeals  where the primary issue is criminal,
and  this  Court  sometimes has  jurisdiction
over  appeals  where  the  primary  issue  is
civil.   This,  in a nutshell,  is  why  both
appellate  courts  have in the  past  decided
questions  regarding  Alaskas  sex   offender
registration  laws,  and why  both  appellate
courts  will  continue  to  decide  questions
concerning these laws.

Why we lack jurisdiction to decide Holdens appeal

     Holden   is  appealing  the  final   decision
rendered   by   the   superior   court    in    an
administrative   appeal.   The  pertinent   Alaska
statutes  and  appellate rules specify  that  such
appeals must be taken to the supreme court.
          AS 22.05.010(c) declares that [a] decision of
the  superior court on an appeal from an administrative
agency decision may be appealed to the supreme court as
a  matter  of  right.   Alaska  Appellate  Rule  202(a)
contains the corollary that [a]n appeal may be taken to
the  supreme court from a final judgment entered by the
superior  court ... in the circumstances  specified  in
AS 22.05.010.
          Both  this statute and this rule use the word
may.   But the statute and the rule are permissive only
in  the  sense that it is up to the parties  to  decide
whether  to pursue an appeal.  Once a litigant  decides
to appeal the superior courts decision, Alaska law does
not  give  the  litigant a choice  as  to  whether  the
supreme  court  or  this Court will  hear  the  appeal.
Moreover,  we appellate courts have no choice  in  this
matter either.  Instead, the provisions of AS 22.05 and
AS  22.07  specify whether the appeal will be heard  by
the supreme court or by this Court.
          AS  22.05.010 declares that, even though  the
Alaska  Supreme Court retains final appellate authority
in  all  litigation  conducted in the  courts  of  this
state,  superior  court litigants are not  entitled  to
choose  whether  to file their appeals in  the  supreme
court as opposed to the court of appeals.  Rather,  for
all  cases  within the jurisdiction  of  the  court  of
appeals, litigants are obliged to file their appeals in
the court of appeals, and in all other cases, litigants
are obliged to file their appeals in the supreme court.
          Subsection  (a) of AS 22.05.010  states  that
litigants  have  only one appeal as a matter  of  right
from  an  action  or proceeding commenced  in  ...  the
superior  court.   And subsection (b)  of  the  statute
declares  that  litigants have a  right  to  pursue  an
appeal  in the supreme court only in those actions  and
proceedings from which there is no right of  appeal  to
the court of appeals under AS 22.07.020 ... .
          In  other words, a litigants appeal  will  be
heard by this Court  and not by the supreme court   if,
under  AS 22.07.020, the litigant has a right of appeal
to  this  Court.  In all other cases (that is,  in  all
instances  where a litigant has no right of  appeal  to
this  Court  under AS 22.07.020), the litigants  appeal
will  be  heard by the supreme court  and not  by  this
Court.
          When the legislature created this Court,  the
legislature declared in AS 22.07.020(a) that  we  would
have  appellate  jurisdiction  over  certain  specified
types of superior court litigation.  In particular,  AS
22.07.020(a)(1) states that this Court has jurisdiction
over  all  actions  and proceedings  commenced  in  the
superior   court  that  involve  criminal  prosecution,
post-conviction relief, juvenile delinquency (including
waiver  of  juvenile jurisdiction under AS  47.12.100),
extradition, habeas corpus, probation and  parole,  and
bail.   For present purposes, the most important aspect
of  our jurisdictional statute is that it describes our
jurisdiction  in terms of the types of litigation  that
might  give rise to an appeal, rather than in terms  of
the types of legal issues that we might have to decide.
          From  time  to time, the types of  litigation
listed  in  AS 22.07.020(a) will give rise  to  appeals
(and   petitions)  which  present  issues  that   might
normally be considered civil.
          For  instance, in Martin v. State,  797  P.2d
1209  (Alaska  App. 1990), the issue was  whether  this
Court had jurisdiction to hear the defendants appeal of
an  order holding him in civil contempt for failing  to
furnish  handwriting exemplars to  the  state  troopers
(pursuant to a search warrant authorizing the taking of
these  exemplars).  The State argued  that  we  had  no
jurisdiction to hear the defendants appeal because  the
contempt action was civil rather than criminal.  Id. at
1216-17.   But this Court gave a broad construction  to
the phrase involving ... criminal prosecution.  We held
that, because the civil contempt action arose out of  a
criminal  prosecution, and because judicial  efficiency
[would]  be  greatly promoted if this Court  heard  the
appeal,  our acceptance of jurisdiction was  consistent
with the legislative intent [behind] AS 22.07.020.  Id.
at 1217.
          Similarly, in Weidner v. State, 764 P.2d 717,
719-21  (Alaska  App. 1988), this Court  confirmed  its
jurisdiction to hear the appeal of an attorney who  was
subjected  to  civil  fines for disobedience  to  court
orders during a criminal trial.
          Our  decisions in Martin and Weidner  can  be
viewed  as  examples  of the rule identified  by  Judge
Singleton  in his concurrence in Webber v. Webber,  706
P.2d 329 (Alaska App. 1985):  that when a criminal case
involves civil or quasi-civil supplemental or ancillary
proceedings,  these  proceedings are  really  part  and
parcel  of the underlying criminal proceeding.  Webber,
706  P.2d at 333.  This conclusion is borne out by  our
decision  in  R.I. v. State, 894 P.2d 683 (Alaska  App.
1995).
          The  appellant  in  R.I.  was  adjudicated  a
juvenile delinquent.  As one of the conditions  of  his
probation,  he was ordered to make restitution  in  the
amount  of  approximately  $3000.   Later,  because  of
various  violations  of  his probation  (including  his
failure  to  make  restitution),  the  superior   court
revoked R.I.s probation and institutionalized him.   In
addition,  because it appeared likely that  R.I.  would
remain  institutionalized  until  the  courts  juvenile
jurisdiction over him ended, the superior court entered
a civil judgement against R.I. (in favor of the victims
of   his   crimes)  for  the  amount  of   the   unpaid
restitution.2
          On  appeal,  we held that the superior  court
lacked authority to convert the restitution order  into
a  civil  judgement.  We acknowledged that the superior
court  acted  for the purpose of ensur[ing]  that  R.I.
eventually  paid the restitution, even if  payment  did
not  occur  until  after  R.I.s release  from  juvenile
supervision.3   However, we held that in attempting  to
achieve  this  goal, the [superior] court acted  beyond
          its legal powers.4
          Our  decision  in  R.I.  confirms  the  legal
principle  recognized in Martin, Weidner,  and  Webber:
the  principle  that  this Court  has  jurisdiction  to
decide  appeals  or  petitions that raise  issues  that
might be viewed as civil, so long as these issues arise
from   the   types   of  litigation   listed   in   our
jurisdictional statute.
          On  the  other hand, the fact that the matter
being   litigated  involves  a  question  of   criminal
procedure,  or  hinges  on  the  interpretation  of   a
criminal  statute,  or arises as  a  consequence  of  a
criminal  conviction,  does not necessarily  mean  that
this  Court has jurisdiction over the appeal.   Indeed,
the  Alaska  Supreme  Court has repeatedly  adjudicated
issues  that  are primarily criminal when those  issues
arose  in  the  types  of legal  proceedings  that  are
directly appealable to the supreme court.
          Here are several examples from the last three
years:   State  of  Alaska & Alaska Office  of  Victims
Rights  v.  Murtagh et al., 169 P.3d 602 (Alaska  2007)
(construing  and adjudicating the constitutionality  of
various  provisions of the Victims Rights Act governing
defense attorneys and defense investigators); Gabrielle
v.  Dept. of Public Safety, 158 P.3d 813 (Alaska  2007)
(interpreting various statutes that limit or prohibit a
felons possession of a concealable firearm); Hartman v.
Division of Motor Vehicles, 152 P.3d 1118 (Alaska 2007)
(adjudicating the lawfulness of an investigative stop);
Cooper   v.   Cooper,  144  P.3d  451   (Alaska   2006)
(interpreting the elements of the offenses of  stalking
and  violating a protective order); Crawford  v.  Kemp,
139   P.3d   1249   (Alaska  2006)  (adjudicating   the
lawfulness of an arrest for disorderly conduct);  Saltz
v.  Division  of Motor Vehicles, 126 P.3d  133  (Alaska
2005)  (adjudicating the lawfulness of an investigative
stop for driving under the influence).
          In  fact,  on  July 25th of  this  year,  the
Alaska  Supreme  Court issued an opinion  deciding  the
question  of whether the Sex Offender Registration  Act
imposes  a  punishment  for  purposes  of  the   Alaska
Constitutions ex post facto clause (Article I,  Section
15).  See Doe v. State, __ P.3d __, Alaska Opinion  No.
6290 (July 25, 2008).
          In  Doe,  the  supreme court  held  that  sex
offender  registration is punishment for ex post  facto
purposes   and, thus, the registration requirement  can
not  lawfully  be imposed on a defendant whose  offense
predates   the  enactment  of  the  registration   law.
Because  the supreme courts decision in Doe appears  to
require  reversal  of  the superior  courts  underlying
decision  in this case, we will speak more of  the  Doe
decision later.  For present purposes, however, Doe  is
important  because it provides yet another illustration
that  the  Alaska  Supreme Court will  decide  criminal
          issues if those issues are presented in the types of
civil litigation that are appealable to that court.
          We  addressed  this  division-of-jurisdiction
issue  in Higgins v. Briggs, 876 P.2d 539 (Alaska  App.
1994).  Higgins involved a prisoner who sought judicial
review  of  the Department of Corrections  decision  to
take away his good time credit for alleged misbehavior.
After  the superior court denied relief, Higgins  filed
an  appeal  in this Court. We ruled that the underlying
superior court litigation should have been filed as  an
administrative appeal.  Id. at 542.  We  further  ruled
that,  because the underlying superior court litigation
should  have been treated as an administrative  appeal,
Higginss appeal of the superior courts decision  should
have   been   taken   to   the  supreme   court   under
AS  22.05.010(c).  Thus, we concluded that we  did  not
have  jurisdiction  to  hear  Higginss  appeal  of  the
superior courts decision.  Id. at 543-44.
          It  is  true  that this Court has  previously
decided issues involving the proper interpretation  and
application of Alaskas sex offender registration  laws.
See  Beltz  v.  State, Alaska App.  Memorandum  Opinion
No.  5079  (June 14, 2006), 2006 WL 1627913;  State  v.
Otness,  986 P.2d 890 (Alaska App. 1999).  It  is  also
true that the duty to register as a sex offender arises
as a consequence of a criminal conviction.
          But  the  reason this Court had  jurisdiction
over the appeals in Beltz and in Otness is not that sex
offender  registration is quasi-criminal, or  that  the
requirement  of sex offender registration arises  as  a
consequence  of  a  criminal conviction.   Rather,  our
jurisdiction in Beltz and Otness was based on the  fact
that  both  cases were appeals from orders  entered  in
criminal prosecutions.  If these same legal issues  had
arisen  in  appeals of final decisions  issued  by  the
superior  court in administrative appeals  (or  in  any
other type of civil litigation where the parties have a
right of appeal to the supreme court), this Court would
have  lacked jurisdiction over the appeals despite  the
quasi-criminal nature of the issues raised.
          In  Holdens case, the decision being appealed
is  the final decision issued by the superior court  in
an  administrative  appeal.  AS  22.05.010(c)  declares
that this type of appeal must be pursued in the supreme
court,  and Higgins v. Briggs squarely holds that  this
Court has no jurisdiction to hear this type of appeal.
          Nevertheless, when a litigant has a right  of
appeal  (as Holden does in this case), and the  problem
is  that  the  appeal  has  been  filed  in  the  wrong
appellate  court  (i.e., filed in the  appellate  court
that   lacks   jurisdiction  over   the   appeal),   AS
22.05.015(c)  declares that the appeal  [must]  not  be
dismissed.  Rather, [t]he case shall be transferred  to
the proper court.
          Accordingly,  we TRANSFER Holdens  appeal  to
the  Alaska Supreme Court.  The Clerk of the  Appellate
Courts is directed to re-open File No. S-12389.
          The  decision to transfer this  case  to  the
supreme  court would normally be our final word  in  an
appeal.   However, we would be remiss  if  we  did  not
alert  the parties to the fact that the supreme  courts
recent  decision  in Doe  i.e., the decision  that  sex
offender  registration is a punishment for purposes  of
our  state  constitutions ex post facto  clause   means
that  the superior courts decision in Holdens case  was
wrong.
          As  explained  above, Holden  argued  to  the
superior court that his offense (assault with intent to
commit rape under Alaskas former criminal code) was not
covered  by  the definition of aggravated  sex  offense
codified in the former version of AS 12.63.100(1).  The
superior  court  ruled  that  Holdens  claim  was  moot
because,  while  Holdens litigation  was  pending,  the
legislature  amended the definition of  aggravated  sex
offense  so  that it now applies to offenses  committed
under Alaskas former criminal code.
          The  underlying legal premise of the superior
courts  ruling is that the new version of  the  statute
(the version enacted while Holden was litigating in the
superior court) can lawfully be applied to Holden.  But
in  Doe,  the Alaska Supreme Court declared  that  this
premise  is  wrong.  The supreme court  held  that  sex
offender  registration is a form of punishment  for  ex
post   facto   purposes,  and  thus  the   registration
requirement  can  not  be imposed on  defendants  whose
sexual offense pre-dates the enactment of the law.
          Because the Sex Offender Registration Act was
first enacted in 1994,5 and because Holdens offense was
committed in the mid-1970s,6 it appears that Holden  is
exempt   from   the   registration  requirement.    And
certainly, with respect to the precise issue  litigated
in  the  superior court in this case, Holden is  exempt
from  the expanded definition of aggravated sex offense
that the legislature enacted after Holden initiated his
administrative appeal.
          Because  of  this, the parties  may  wish  to
discuss  whether  this  case can  be  resolved  in  the
superior  court without the necessity of an  appeal  to
the supreme court.

_______________________________
1 Former AS 11.15.160 provided:  A person who assaults another
with  intent to kill, or to commit rape or robbery upon  the
person  assaulted,  is  punishable by  imprisonment  in  the
penitentiary  for not more than 15 years nor less  than  one
year.

2 R.I., 894 P.2d at 684.

3 894 P.2d at 685.

4 Id.

5 See SLA 1994, ch. 41,  4.

6 See Holden v. State, 602 P.2d 452 (Alaska 1979).

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