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State, Dept. of Public Safety v. Superior Court (1/12/2018) ap-2583

State, Dept. of Public Safety v. Superior Court (1/12/2018) ap-2583

                                                                  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 @ akcourts.us
  



                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA, DEPARTMENT OF  

PUBLIC SAFETY,                                                                      Court of Appeals No. A-13015  

                                                                                  Trial Court No. 2UT-17-0028 CR  

                                             Petitioner,  



                                 v.                                                               O P I N I O N  



SUPERIOR COURT,  

                                                                                     No. 2583 - January 12, 2018  

                                             Respondent.  



                                                                                 

                      Original Application for Relief from the Superior Court, Second  

                      Judicial District, Nome, Romano D. DiBenedetto, Judge.  



                      Appearances:                John   Novak,   Assistant   Attorney   General,  

                                                                                                            

                      Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  

                                                                                            

                      the Petitioner.  Matthew Tallerico, Gazewood & Weiner, P.C.,  

                      Fairbanks, for real party in interest William Hoogendorn.  

                                                                                              



                      Before: Mannheimer, Chief Judge, and Allard and Wollenberg,  

                                                                    

                      Judges.  



                      Judge ALLARD.  



                      The Department of Public Safety seeks discretionary review of an order                                            



issued   by  the   Nome   superior   court   in   a   criminal   case,   State   of   Alaska   v.   William  



Hoogendorn .    The order directs the Department of Public Safety to transport William                                              



Hoogendorn    from    the    Goose    Creek    Correctional    Center    near    Wasilla    (where  


----------------------- Page 2-----------------------

Hoogendorn is currently housed) to the Fairbanks Correctional Center.                                                                                                                                          The purpose of                         



this transfer is to facilitate a psychological evaluation of Hoogendorn by a Fairbanks-                                                                                                                                   



based psychologist retained by Hoogendorn's defense attorneys.                                                                                                                                   The Department of                                   



Public Safety contends that the superior court exceeded its authority when it issued this                                                                                                                                                        



order.  



                                       Because the controversy at issue here is not between the parties to the                                                                                                                           



underlying criminal action, but instead between the Department of Public Safety and the                                                                                                                                                            



superior court, we have recaptioned this case and reclassified the Department's petition                                                                                                                                              



for review as an original application for relief under Appellate Rule 404.                                                                                                                                            



                                       This reclassification is in accord with the direction provided by the Alaska                                                                                                                     



                                                                                                                 1  

Supreme Court in                                     Surina v. Buckalew.                                                                                                                                                                    

                                                                                                                       In Surina, the supreme court held that a third  



                                                                                                                                                                                                                                     

party who is adversely affected by an order in a criminal case has essentially two options:  



                                                                                                                                                                                                                                                      

(1) the third party can refuse to obey the order and then appeal any resulting finding of  



                                                                                                                                                                                                    

contempt  under  Appellate  Rule  202;  or  (2)  the  third  party  can  seek  discretionary  



                                                                                                                                                                                                                                       

appellate review of the order by filing an original application for relief under Alaska  



                                                           2  

                                              

Appellate Rule 404. 



                                                                                                                                                                                                                                         

                                       Here,theDepartment ofPublicSafety has chosen to seekimmediatereview  



                                                                                                                                                                                                                                      

of  the  superior  court's  order,  rather  than  directly  refusing  to  comply  and  risking  



                                                                                                                                                                                                                                   

contempt. We therefore conclude that the Department's petition to this Court is properly  



                                                                                                                                                                                                                               

characterized as an original application for relief under Appellate Rule 404.  



                                                                                                                                                                                                                                                  

                                       We also concludethat our discretionary reviewis warranted inthis case and  



                                                                                                                                                                                                                                                    

that the superior court exceeded its authority when it issued this order.  Accordingly, for  



          1        Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).  



          2        See Surina                     , 629 P.2d at 972-73; see also Alaska Public Defender Agency v. Superior  



Court, 343 P.3d 914, 915 n.3 (Alaska App. 2015).  



                                                                                                                       - 2 -                                                                                                                 2583
  


----------------------- Page 3-----------------------

the reasons explained here, we grant the Department's original application for relief, and  

                                                                                                                                



we reverse the superior court's order.  

                                                 



          Background facts and prior proceedings  

                                                       



                    Earlier last year, William Hoogendorn was indicted on one count of first- 

                                                                                                                             



degree burglary and two counts of second-degree sexual assault.  His case is currently  

                                                                                                     



pending  before  the  Nome  superior  court.                         Hoogendorn  is  represented  by  publicly  

                                                                                                                        



appointed counsel - specifically, a Fairbanks-based law firm under contract with the  

                                                                                                                                



Office of Public Advocacy.  Hoogendorn has not been released on bail, and he remains  

                                                                                                                         



in the custody of the Department of Corrections.  

                                                                            



                    In August 2017, Hoogendorn's attorneys filed a motion requesting that the  

                                                                                                                                



superior court order the Department of Corrections to transport Hoogendorn from Anvil  

                                                                                                                            



Mountain Correctional Center in Nome (where Hoogendorn was then housed) to the  

                                                                                                                                



Fairbanks Correctional Center.  The attorneys asserted that the purpose of this transfer  

                                                                                                                         



was to facilitate a psychological evaluation by a Fairbanks-based psychologist that the  

                                                                                                                                



defense attorneys had retained.  The attorneys argued that the psychological evaluation  

                                                                                                                     



was essential to Hoogendorn's defense, and that it would be "more cost-effective" for  

                                                                                                                                



the State to bear the costs of transporting Hoogendorn to the Fairbanks Correctional  

                                                                                                                 



Center rather than have the Office of Public Advocacy pay for the Fairbanks-based  

                                                                                                           



defense expert to travel to Nome.  

                                          



                    The district attorney's office apparently did not opposethe defense request,  

                                                                                                                         



and the Department of Corrections was not served with the defense attorney's motion.  

                                                                                                                                      



The superior court subsequently granted the defense motion and ordered the Department  

                                                                                                                   



of  Corrections  to  transport  Hoogendorn  to  the  Fairbanks  Correctional  Center  "for  

                                                                                                                              



evaluation purposes."  

                                   



                                                              -  3 -                                                        2583
  


----------------------- Page 4-----------------------

                    When the Department of Corrections became aware of this  order,  the  

                                                                                                                                



Department  moved  for  reconsideration.                             In  its  motion  for  reconsideration,  the  

                                                                                                                               



Department of Corrections pointed out that it had not received notice of the defense  

                                                                                                                         



attorney's request, and that it had not been given any opportunity to be heard on this  

                                                                                                                               



matter.   The Department of Corrections also pointed out that it was not the agency  

                                                                                                                          



responsible  for  transporting  prisoners  between  correctional  centers;  instead,  under  

                                                                                                                           



AS 33.30.081(a), the responsible agency would be the Department of Public Safety.  

                                                                                                                                      



Lastly, the Department of Corrections noted that Hoogendorn had recently been moved  

                                                                                                                           



from the Anvil Mountain Correctional Center in Nome to the Goose Creek Correctional  

                                                                                                                  



Center in Wasilla - a location that was easier and less expensive for a defense expert  

                                                                                      



to travel to.  

                    



                    Thesuperior court directedHoogendorn'sattorneys to file aresponseto the  

                                                                                                                                 



Department  of  Corrections's  motion  for  reconsideration  and  to  address  the  court's  

                                                                                                                          



authority to order the requested transfer.   In their response, Hoogendorn's attorneys  

                                                                                               



continued  to  frame  their  request  as  a  request  to  transport  Hoogendorn  from Anvil  

                                                                                                                           



Mountain Correctional Center in Nome to the Fairbanks  Correctional Center.   The  

                                                                                                                               



attorneys continued to argue that it was "more cost-effective" to order such a transport,  

                                                                                                                       



although they provided no estimates of any costs and did not address, or acknowledge,  

                                                                                                                



that Hoogendorn had been moved to the Goose Creek Correctional Center in Wasilla.  

                                                                                                                       



                    The defense attorneys asserted that the court had the authority to order  

                                                                                                                            



Hoogendorn's transfer under AS 33.30.081(f) - a statutory provision dealing with the  

                                                                                                                                



transportation of prisoners who are (1) parties to a civil action or (2) witnesses to either  

                                                                                                                            



a civil or criminal action.  

                             



                    The superior court subsequently granted the Department of Corrections's  

                                                                                                                



motion for reconsideration and issued a new order.   The superior court's new order  

                                                                                                                            



directed the Department of Public Safety to transport Hoogendorn to the Fairbanks  

                                                                                                                     



                                                              - 4 -                                                         2583
  


----------------------- Page 5-----------------------

Correctional Center within fourteen days.  The order also required Hoogendorn to be  

                                                                                                                                 



kept at the Fairbanks Correctional Center for up to twenty-one days to ensure that there  

                                                                                                                             



was adequate time for "any evaluations [the defense attorneys] deemed necessary."  

                                                                                                                                 



                    The record does not indicate whether the Department of Public Safety was  

                                                                                                                               



given notice that the superior court was contemplating such an order, or whether the  

                                                                                                                                



Department was given an opportunity to be heard prior to the issuance of the new order.  

                                                                                                                                      



                    After the new order was issued, the Department of Public Safety filed a  

                                                                                                                                   



motion for reconsideration.  In its motion for reconsideration, the Department of Public  

                                                                                                                           



Safety argued that the court's order violated the separation of powers doctrine.  The  

                                                                                                                              



Department also argued that the superior court did not have the authority to order the  

                                                                                                                                



Department to transfer a prisoner from one correctional facility to another correctional  

                                                                                                                  



facility, especially where the primary purpose of the transfer was to reduce the defense's  

                                                                                                                       



litigation expenses. The superior court denied the Department of Public Safety's motion  

                                                                                                                          



for reconsideration.  

                                



                    The Department of Public Safety then filed a request for discretionary  

                                                                                                                



review by this Court and an emergency motion to stay the court's order.  We stayed the  

                                                                                                                                



superior court's order pending our review of this matter, and we now issue our formal  

                                                                                               



decision resolving this original application on its merits.  

                                                                                         



           Why we reverse the superior court's order  

                                                                   



                    Alaska Statute 33.30.081 governs the transportation of prisoners.  Under  



subsection (a) of this statute, the Department of Public Safety is the government agency  

                                                                                                                          



responsible for  "transporting a prisoner to and from the court having jurisdiction over  

                                                                                                                              



the prisoner," and for "delivering a prisoner to a correctional facility upon temporary or  

                                                                                                                                  



                                                              -  5 -                                                        2583
  


----------------------- Page 6-----------------------

final commitment by a court or upon transfer of a prisoner from one correctional facility                                                      



                     3  

to another."              



                                                                                                                                              

                        Subsection  (e)  of  AS  33.30.081  states  that  the  courts  have  a  limited  



                                                                                                                                                        

authority to order the transportation of prisoners.  This subsection declares:  "Except as  



                                                                                                                                                      

provided in (f) of this [statute] or as necessary in a criminal action pending against the  



                                                                                                                   4  

                                                                                                                       

prisoner, a court may not order the transportation of a prisoner." 



                                                                                                                                 

                        Subsection (f) of the statute addresses the authority of the courts to order  



                                                                                                                                                        

the transportation of prisoners who are (1) parties to a civil action or (2) witnesses to  



                                                          

either a civil or criminal action:  



                                                                                                                               

                                    (f) A court may order a prisoner who is a party or  

                                                                                                                                

                        witness to a civil action or a witness to a criminal action to  

                                                                                                                            

                        appear at a place other than within a correctional facility only  

                                                                                                              

                        if   the   court   determines,   after   providing   a   reasonable  

                                                                                                                             

                        opportunity  for  the  commissioner  to  comment,  that  the  

                                                                                                                           

                        prisoner's  personal  appearance  is  essential  to  the  just  

                                                                                                                              

                        disposition of the action. In making its determination, the  

                                                                                                                 

                        court shall consider available alternatives to the prisoner's  

                                                                                                                 

                        personal  appearance  including  deposition  and  telephone  

                        testimony.5  



      3     AS 33.30.081(a).  



      4     AS 33.30.081(e).  



      5     AS 33.30.081(f).  



                                                                         -  6 -                                                                   2583
  


----------------------- Page 7-----------------------

                            When the present matter was litigated in the superior court, the parties and                                                                    



                                                                                                                                   6  

the court focused on this subsection and the related case law.                                                                                                                 

                                                                                                                                       But subsection (f) is  



                                                                                                        

inapplicable to the circumstances presented here.  



                                                                                                                                                                             

                            By its terms, subsection (f) applies only when a court is asked to order the  



                                                                                                                                                                                     

transportation  of  a  prisoner  to  a  place  "other  than  within  a  correctional  facility."  



                                                                                                                                                                            

Moreover, subsection (f) applies only to two sets of prisoners:  (1) prisoners who are  



                                                                                                                                                                                     

parties to a civil action, and (2) prisoners who are witnesses in a civil or criminal case.  



                                                                                                                                                                                

Subsection  (f)  does  not  apply  to  prisoners,  like  Hoogendorn,  who  are  parties  to  a  



                   

criminal case.  



                                                                                                                                                     

                            Instead, the only provision of AS 33.30.081 that applies to Hoogendorn's  



                                                                                                                                                                               

circumstances is the second clause of subsection (e) - the clause that allows a court to  



                                                                                                                                                                 

order the transportation of a prisoner if that transportation is "necessary in a criminal  



                                                        

action pending against the prisoner."  



                                                                                                                                                                                

                            Alaska  Criminal  Rule  38(a)  sets  forth  the  circumstances  in  which  a  



                                                                                                                                                                                     

defendant's physical presence is necessary at a court proceeding in a criminal action.  



                                                                                                                                                                      

But there do not appear to be any rules or regulations that directly address when it might  



                                                                                                                                                                  

be "necessary in a criminal action" to transport a defendant from one location to another,  



                                                                                                                                                                               

such as a correctional facility, for a purpose other than the defendant's appearance in  



court.  



                                                                                                                                                                

                            The Department of Public Safety asserts that the courts have no authority  



                                                                                                                                                                           

to order a prisoner transported from one correctional facility to another, and that any  



       6      See, e.g., Alex H. v. State,                          389 P.3d 35, 42-54 (Alaska 2017) (reviewing denial of  



incarcerated parent's request to be transported to court for termination trial); Richard B. v.  

State, 71 P.3d 811, 827 (Alaska 2003) (adopting eight factors for deciding such requests from   

incarcerated parents in child-in-need-of-aid cases).  



                                                                                    -  7 -                                                                              2583
  


----------------------- Page 8-----------------------

court order directing the Department to do so would violate the doctrine of separation of                                                                                              



powers.   We agree with this position up to a point.                                            



                             A   court's   authority   to   interfere   with   the   internal   workings   of   the  



Department of Corrections and theDepartment of Public                                                                   Safety is extremely limited, and                           



the case law makes it clear that the courts have no authority to designate a particular                                                                              



                                                                             7  

correctional facility for a defendant.                                                                                                                                               

                                                                                 But we are unwilling to rule categorically that the  



                                                                                                                                                                

courts have no authority to order transportation of a prisoner from one correctional  



                                                                                                                                                              

facility to another under any circumstances.  Conceivably, there might be extraordinary  



                                                                                                                                                                 

circumstances where such a transport order would be necessary to protect a defendant's  



                                                                                                                       

physical safety or to protect a defendant's due process rights.  



                                                                                                                                         

                             However,  Hoogendorn's  case  presents  no  such  extraordinary  circum- 



                                                                                                                                                                                    

stances.   Hoogendorn's attorneys claim that it would be "more cost-effective" if the  



                                                                                                                                                                                    

psychological evaluation was conducted in Fairbanks, but the defense attorneys have not  



                                                                                                                                                                     

claimed that it would be impossible for the psychological examination to be conducted  



                                                                                                                                                

at the correctional facility where Hoogendorn is currently housed.  



                                                                                                                                                                                      

                             Moreover, the pleadings make clear that the defense attorneys' claim of  



                                                                                                                                                                                        

"cost-effectiveness" is purely a relative one.  That is, the defense attorneys assert that it  



                                                                                                                                                                                 

would be more "cost-effective" for the defense  if the Department of Public Safety bore  



                                                                                                                                                                              

the costs of bringing Hoogendorn to Fairbanks, as opposed to having the Office of Public  



                                                                                                                                                                

Advocacy bear the costs of sending the defense expert to the Goose Creek Correctional  



                                                                                                                                                                                     

Center  in  Wasilla.                          But  the  attorneys  make  no  attempt  to  show  that  it  would  be  



                                                                                                                                                                         

objectively more cost-effective for all involved; nor do they even provide any estimate  



                                

of the relative costs.  



       7      See Rust v. State, 582 P.2d 134, 137-38 (Alaska 1978); see also State v. Combs, 64   



P.3d 135, 137 (Alaska App. 2003) (holding that the sentencing court had no authority to                                                                                                

order Department of Corrections to house defendant separately from another inmate).   



                                                                                        -  8 -                                                                                 2583
  


----------------------- Page 9-----------------------

                                      (We note that if Hoogendorn were a                                                                    witness  in a court case, the party who                                                        



wished to have Hoogendorn physically transported to the site of the trial or hearing                                                                                                                                             

would be responsible for reimbursing the State for the cost of this transportation.                                                                                                                                                     8)  



                                                                                                                                                                                                                                

                                      We therefore agree with the Department of Public Safety that the superior  



                                                                                                                                                                                                                                                   

court exceeded its authority when it ordered the Department to transport Hoogendorn to  



                                                                                                     

the Fairbanks Correctional Center.  



                    Conclusion  



                                      The  Department  of  Public  Safety's  original  application  for  relief  is  

                                                                                                                                                                                                                                                 



GRANTED, and the superior court's order is REVERSED.  

                                                                                                                                    



          8        See  AS 33.30.081(g);                                         see also                AS 33.30.081(h) (indigent prisoner who is a party                                                                              



to a civil action is not required to bear full costs of his or her transportation).                                                                                                                                          



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