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Brandon v. Dep't. of Corrections (6/6/97), 938 P 2d 1029
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD BRANDON, )
) Supreme Court No. S-6983
) Superior Court No.
v. ) 3AN-95-96 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF CORRECTIONS, )
Appellee. ) [No. 4829 - June 6, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Brian C. Shortell, Judge.
Appearances: Richard Brandon, pro se,
Florence, Arizona. Timothy W. Terrell,
Assistant Attorney General, Anchorage, Bruce
M. Botelho, Attorney General, Juneau, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
RABINOWITZ, Justice, dissenting in part.
Richard Brandon, a state prisoner serving a long
sentence, was transferred to a prison in Arizona. He contends that
the transfer interferes with his rehabilitation because his family
will not be able to visit him in Arizona. The question presented
by this case is whether the superior court had jurisdiction to hear
his administrative appeal from the transfer decision of the
Department of Corrections (DOC). Our answer is "yes."
II. FACTS AND PROCEEDINGS
Richard Brandon is serving a twenty-five-year sentence
for a 1990 conviction. Due to overcrowding in Alaska prisons DOC
implemented a population management plan. As part of this plan,
DOC contracted with the Corrections Corporation of America to house
about 200 Alaska inmates at the Central Arizona Detention Center in
DOC selected inmates for transfer by asking for
volunteers and then "going through its records and finding inmates
who fit two broad categories." One of the categories was "inmates
with seven and one-half or more years to serve." Brandon was
selected under this category.
Initially, Brandon was incarcerated at the Spring Creek
Correctional Center. On November 28, 1994, Brandon was given
notice of a classification hearing concerning "[p]ossible transfer
to an institution outside Alaska." A classification hearing was
held November 30, 1994. Hearing Officer Donald Nelson recommended
transfer while acknowledging that Brandon's family was in Alaska
and made weekly visits. Superintendent Larry Kincheloe subse-
quently approved the recommendation.
On December 15, 1994, Brandon appealed to DOC
Commissioner Larry McKinistry. In this appeal, Brandon claimed:
(1) the hearing was illegal because only two hearing officers were
present; (2) the outcome of the hearing was predetermined; (3) fair
consideration was not given to the rehabilitative nature of family
visits; and (4) the hearing officers erred in finding that
rehabilitation would not be adversely affected by the transfer. On
December 19 the appeal was returned as premature because the
central classification office had not yet notified Brandon of the
transfer. On that same day, Chief Classification Officer Robert P.
Spinde informed Brandon that due to a possible error in providing
notice of the hearing, Brandon would be given forty-eight hours to
submit further relevant information.
On January 1, 1995, Brandon filed an appeal from DOC's
December 19 decision with the superior court. The appeal claimed
that the December 15 appeal to the DOC commissioner was
"arbitrarily rejected."The appeal listed various due process
On January 3 Brandon was given notice of his transfer to
the Arizona prison. On January 8 Brandon submitted an appeal
similar to the December 15 appeal to the DOC deputy commissioner.
On January 10 this appeal was denied. It appears that no appeal
of this denial was filed; rather, the superior court continued to
work from the original January 1 appeal.
DOC moved to dismiss the appeal claiming the court lacked
jurisdiction. It argued that the court did not have jurisdiction
to review this type of decision in an administrative appeal because
the decision to transfer Brandon was not made in an "adjudicative"
proceeding or in a proceeding that produced a record capable of
On January 20 Brandon was transferred. On February 8 the
superior court granted DOC's motion to dismiss the appeal, finding
that the court lacked jurisdiction because the decision to transfer
"was not made in the course of an adjudicative proceeding which
produced a record capable of review."
Brandon appeals this decision, claiming that the superior
court erred in granting the motion to dismiss for lack of
III. STANDARD OF REVIEW
The issues of statutory interpretation involved in this
appeal are reviewed under a substitution of judgment standard.
Longwith v. State, Dep't of Natural Resources, 848 P.2d 257, 260
n.5 (Alaska 1992). Constitutional issues present questions of law
and are to be reviewed de novo. Keane v. Local Boundary Comm'n,
893 P.2d 1239, 1241 (Alaska 1995).
Alaska Statute 22.10.020(d) states, "The superior court
has jurisdiction in all matters appealed to it from a[n] . . .
administrative agency when appeal is provided by law." We have
previously stated that neither the Administrative Procedure Act, AS
44.62.010-.650, nor any other statutory provision provides for an
appeal from a DOC administrative decision. Owen v. Matsumoto, 859
P.2d 1308, 1309 (Alaska 1993). Thus AS 22.10.020(d) does not
confer jurisdiction on the superior court to hear this appeal.
However, we have held that administrative appeals are
proper from certain DOC determinations even when not authorized by
statute. See Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990).
For example, "an inmate [has] a right to judicial review of major
disciplinary proceedings when issues of constitutional magnitude
are raised." Id. at 660; Department of Corrections v. Kraus, 759
P.2d 539, 540 (Alaska 1988); McGinnis v. Stevens, 543 P.2d 1221,
1236 n.45 (Alaska 1975). In Owen, we explicitly declined to hold
that "judicial review of DOC administrative decisions is limited to
disciplinary action." 859 P.2d at 1310. Instead we stated that
"[a]ny alleged violation of fundamental constitutional rights must
be afforded judicial review." Id. Thus, it is clear that the
superior court has jurisdiction to hear an administrative appeal of
a DOC action involving constitutional issues.
In Kraus, we listed several reasons for allowing
appellate review of DOC disciplinary decisions. These included the
fact that the review would be based on the tape recording of the
proceedings, rather than de novo reception of evidence, which is
characteristic of appeals, and that appellate review is less
expensive and time consuming than other avenues of judicial
oversight. Finally, we stated a clear preference for reviewing
administrative agencies' adjudicative decisions by means of an
appeal. 759 P.2d at 540. Therefore an administrative appeal is
appropriate where there is an alleged violation of fundamental
constitutional rights in an adjudicative proceeding producing a
record capable of review. Owen, 859 P.2d at 1310.
Brandon argues that the classification hearing was an
adjudicative proceeding producing a record reviewable on
administrative appeal. Brandon further asserts that the
classification decision involved a fundamental constitutional
A. Is There a Fundamental Constitutional Right Involved?
Brandon asserts a fundamental right to rehabilitation
under the Alaska Constitution. DOC correctly concedes that there
is a fundamental right to rehabilitation. Alaska Const. art. I, ?
12; Abraham v. State, 585 P.2d 526, 530-33 (Alaska 1978).
Alaska Statute 33.30.061(b) provides that the DOC
commissioner may designate an out-of-state prison for a prisoner
only upon a determination "that rehabilitation or treatment of the
prisoner will not be substantially impaired." Regulation 22 Alaska
Administrative Code 05.252 echos this requirement. Brandon
asserts that DOC erred in determining that his rehabilitation would
not be substantially impaired by transferring him to the Arizona
facility. This is a question grounded on a fundamental
B. Is the Classification Hearing an Adjudicative Proceeding?
We have not explicitly defined the term "adjudicative
proceeding"in the context of an administrative appeal. We have,
however, discussed the meaning of adjudication in an administrative
res judicata case. We explained:
The essential elements of adjudication
include adequate notice to persons to be bound
by the adjudication, the parties' rights to
present and rebut evidence and argument, a
formulation of issues of law and fact in terms
of specific parties and specific transactions,
a rule of finality specifying the point in the
proceeding when presentations end and a final
decision is rendered, and any other procedural
elements necessary for a conclusive determina-
tion of the matter in question. Restatement
(Second) of Judgments ? 83(2) (1982).
Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 908
n.17 (Alaska 1991). The classification hearing has many of the
qualities of an adjudication. The prisoner is entitled to notice.
22 AAC 05.216(b). The prisoner may prepare evidence before the
classification committee. 22 AAC 05.216(b)(7). The committee is
directed to consider whether the prisoner's rehabilitation will be
impaired. 22 AAC 05.252(a). The point at which a final decision
is rendered by the committee and the various internal avenues of
appeal are clear. Further, the hearing addresses individual rather
than general policy determinations. See Wickersham v. Commercial
Fisheries Entry Comm'n, 680 P.2d 1135, 1144 (Alaska 1984) ("When an
agency makes individual factual determinations on which the impact
of the law on the individual depends, it is acting in an
adjudicative capacity."). For these reasons we conclude that the
classification hearing is an adjudicative proceeding.
C. Did the Classification Hearing Produce a Record Capable
The hearing is required to be "tape recorded and kept in
transcribable form." 22 AAC 05.216(4). In addition the committee
is to "make written factual findings"and "indicate the evidence
relied upon"so as to "provide an adequate basis for review of its
decision." 22 AAC 05.216(b)(8). A form including the factors on
which the decision was made is to be issued by the classification
committee. 22 AAC 05.216(c).
DOC finds significance in the fact that "[c]entral
classification independently solicited and received information
regarding such factors as an inmate's medical condition or legal
proceedings." However, the information so received was
documentary, is preserved in the record, and in any case was
germane only to the initial classification decision, an issue not
in dispute. Other than alleged procedural errors, the only
disputed issue was whether the committee erred in determining that
Brandon's rehabilitation would not be substantially impaired by the
transfer. The evidence relevant to that issue is contained in the
The classification determination implicates a constitu-
tional right. The classification committee hearing is an adjudica-
tion and produces a record adequate for review. Though Brandon has
other potential remedies, this court has clearly expressed a
preference for an administrative appeal. Therefore we hold that
the superior court has jurisdiction to hear the present
REVERSED and REMANDED.
RABINOWITZ, Justice, dissenting in part.
I dissent from section IV.A. of the court's opinion.
Brandon asserts that DOC violated his fundamental
constitutional right to rehabilitation under article I, section 12
of the Alaska Constitution.1 It is well established that a court
may review prison administrative decisions only when they affect a
fundamental constitutional right. Abruska v. Department of
Corrections, 902 P.2d 319, 321 (Alaska 1995); Owen v. Matsumoto,
859 P.2d 1308, 1310 (Alaska 1993).2 This court has not previously
recognized a fundamental constitutional right to visitation. See,
e.g., McGinnis v. Stevens, 543 P.2d 1221, 1237-38 (Alaska 1975)
(finding no right to conjugal visits). The Supreme Court of the
United States has unambiguously rejected the existence of such a
right. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454,
On this record I would reject Brandon's effort to
reformulate his transfer challenge as a claim that his
constitutional right to rehabilitation has been violated. Given
our precedents limiting the scope of a prisoner's constitutional
right to rehabilitation and deferring to DOC's discretion in such
matters as prisoner transfers, I would affirm the superior court's
dismissal of Brandon's appeal for lack of subject matter
jurisdiction. In short, I am of the view that Brandon has failed
to raise a viable claim that any of his fundamental constitutional
rights have been adversely impacted by virtue of his transfer.
Visitation does not qualify as the type of therapeutic
program for adult prisoners to which the constitutional right to
rehabilitation attaches. Rather, that right is a guarantee of
access to programs designed to reform the prisoner.
This distinction was drawn in our first decision which
recognized a constitutional right to rehabilitation. Abraham v.
State, 585 P.2d 526 (Alaska 1978), addressed a native prisoner's
complaint that he was denied access to alcohol abuse programs, that
as a Yupik speaker he would be in virtual isolation in state
prison, and that he would be denied his traditional native diet.
Id. at 531, 533. The only grievance which this court acknowledged
as raising a valid rehabilitation claim was Abraham's asserted
denial of access to alcohol abuse programs. Id. at 533. Even the
rather harsh circumstance of incarcerating Abraham where he would
be unable to communicate with others was not viewed as implicating
his right to rehabilitation.3 Abraham thus established that
rehabilitation is an enforceable constitutional interest, but only
in the context of institutional programs designed to rehabilitate
the inmate. Id.
Subsequent cases clarify and reaffirm this understanding.
All define the constitutional right to rehabilitation as a
guarantee of access to a formal program addressed to the specific
problems that impelled the prisoner's antisocial conduct. Abraham
was concerned with alcohol abuse. In Ferguson v. Department of
Corrections, 816 P.2d 134, 139 (Alaska 1991), this court recognized
a prisoner's claim of exclusion from work programs designed to
redress a lack of job skills. We held that the Alaska Constitution
creates "an enforceable interest in continued participation in
[these types of] rehabilitation programs." Id. Other examples of
constitutionally protected reform might include sex offender
counseling or literacy assistance. Invariably, the constitutional
right to rehabilitation has been grounded in a formal program
addressed to a specific problem.4
While undoubtedly important visitation does not qualify
as a constitutionally protected reform program. Like Abraham's
language claim, Brandon alleges only that the change in the
geographical location of his confinement is harsh and will limit
visitation with his two children and family. The record does not
indicate that Brandon claims he is denied access to appropriate
rehabilitation programs. While the courts are a guarantor of
access to such programs, it is not their role to define what needs
should be addressed or how rehabilitative programs should be
structured. Historically such decisions have been left to
legislative judgment and the discretion of DOC. Respect for this
allocation of authority precludes courts from reviewing, under the
guise of enforcing a prisoner's constitutional right to
rehabilitation, the impact on inmates of changes in their place of
The fact of DOC discretion, and concomitant limitations
on judicial review, were recognized by this court in Hays v. State,
830 P.2d 783 (Alaska 1992). There we held that inmates have no
cognizable interest in access to particular rehabilitation
programs. Id. at 785. Petitioner Hays had been fired as a prison
librarian because of his poor attitude and transferred to a
position shoveling snow, where he would have less direct contact
with others. Id. at 784. We recognized that the library position
was a constitutionally protected form of rehabilitation, but
nevertheless rejected the appeal because Hays "was not denied all
rehabilitative opportunities." Id. at 785. In other words, DOC
could exclude a prisoner from an actual reform program, so long as
some appropriate form of rehabilitation was provided. Implicit in
this holding is that DOC has discretion to decide what type of
rehabilitation is suited to the inmate.
Hays has particular significance for this case because
there we made clear the flaw in Hays' claim was jurisdictional.
Id. at 785. Although Hays had alleged he was removed from a reform
opportunity, because prison authorities had discretion to determine
which program was best for him, his grievance did not raise "an
issue of constitutional magnitude." Id. We therefore affirmed the
superior court's dismissal of Hays' administrative appeal for lack
of subject matter jurisdiction. Id.
Finally, as noted at the outset, I would reject Brandon's
effort to reformulate his transfer challenge as a constitutional
rehabilitation claim. Allowing such a conversion eviscerates the
holdings of our decisions in Abraham and Rust. If a prisoner's
mere allegation that his placement interferes with his
rehabilitation is enough to trigger judicial review, then all
transfers may be reviewed by courts.
Movement of inmates raises many issues that can only
properly be considered from the prison administrator's perspective.
For this reason, I would hold that a prisoner seeking judicial
review must establish in the DOC administrative appeals process
that his rehabilitation claim rests on a factual basis other than
the mere assertion that transfer or placement adversely affects
visitation. A mere allegation that a transfer or placement
decision of DOC adversely impacted visitation does not raise an
issue of fundamental constitutional right requiring judicial
One additional observation. The court notes that its
recognition that "visitation privileges are a component of the
constitutional right to rehabilitation does not define their
required scope or permissible limits on their exercise. Such
definitions will have to be achieved in future adjudications."
Given that prisoner visitation is now a component of the
constitutional right to rehabilitation, it seems to me that the
Department of Corrections, State of Alaska will necessarily
encounter great difficulty in attempting to justify most out-of-
state incarcerations, most incarcerations of rural Alaskans in
urban facilities, and most incarcerations that encompass
significant geographical dislocation (e.g., Fairbanks residents
incarcerated in the correctional facility located in Seward). This
is not to say that I view incarceration of prisoners in locations
that will facilitate visitation inappropriate. On the contrary, I
think such a development is a salutary one despite the significant
fiscal implications which will flow from implementation of this
constitutional right of prisoner visitation.
22 AAC 05.252 provides in part:
(a) A prisoner will, in the department's
discretion, be transferred to a contract
facility outside Alaska, except one operated
by the Federal Bureau of Prisons, if the
prisoner is provided a classification hearing
as set out in 22 AAC 05.216 and a determina-
tion is made that the prisoner's rehabilita-
tion or treatment would not be substantially
impaired by the transfer.
That visitation is important to rehabilitation has been
Visiting is the most direct link for the
inmate with the world left behind. Indeed,
visiting is indispensable to any realistic
program of rehabilitation. No single factor
has been proven to be more directly correlated
with the objective of a crime-free return to
society than visiting. The reason for this is
almost too obvious to state: "Strained ties
with family and friends increase the
difficulty of making the eventual transition
back to the community." If those ties are to
be preserved, visiting is imperative.
2 Michael Mushlin, Rights of Prisoners ? 12.00 (2d ed. 1993)
Prison visits have long been recognized
as critically important to inmates as well as
the communities to which the inmates
ultimately will return.
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 468 (1989)
(Marshall, J. dissenting).
Preservation of the family unit is important
to the reintegration of the confined person
and decreases the possibility of recidivism
Id. at 468 (quoting N.C.C.U.S.L. Model Sentencing and Corrections
Act, ? 4-115 Comment (1979).
Virtually every statement on visitation
by prison officials from the ACA Manual to the
State Association of Correction Administrators
(1972), every national study (e.g., the NAC)
and every major textbook on corrections
stresses the critical nature of visitation
both in terms of the reduction of tension
inside the prison and the facilitation of the
ultimate rehabilitation of the prisoner by
strengthening his ties with the "free world."
ABA Standards for the Administration of Criminal Justice, 14 Am.
Crim. L. Rev. 377, 502 (1977).
Our recognition that visitation privileges are a
component of the constitutional right to rehabilitation does not
define their required scope or the permissible limits on their
exercise. Such definitions will have to be achieved in future
22 AAC 05.216(b) provides in part:
The prisoner is entitled to at least 48
hours' advance written notice of a classifica-
tion hearing. . . .
22 AAC 05.216(b)(7) provides in part:
[B]efore the hearing the prisoner may prepare
testimony, solicit statements, or compile
other evidence if such action would not create
a substantial risk of reprisal or undermine
security of the facility.
22 AAC 05.216(b)(4) provides in part:
[I]f the purpose of the hearing is . . .
transfer to a facility outside of Alaska, the
hearing will be tape recorded and kept in
transcribable form for
(A) 12 months if the classification
action is appealed within the
(B) three years if the
classification action is appealed to
the Superior Court or the
classification action resulted in a
transfer to a facility outside of
(C) 30 days if the classification
action is not appealed.
22 AAC 05.216(b)(8) provides in part:
[T]he classification committee will make
written factual findings, and will indicate
the evidence relied upon in sufficient detail
so as to provide an adequate basis for review
of its decision . . . .
22 AAC 05.216(c) provides in part:
The classification committee shall
complete the Classification Form for Sentenced
Prisoners . . . . The decision as to custody
and security status must be based on the
factors contained in the form.
1 Article I, section 12 of the Alaska Constitution provides
in relevant part:
Criminal administration shall be based upon
the following: 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.
2 It is also firmly established that an inmate has no
constitutional right to be incarcerated in a particular prison,
either in-state or out-of-state. We have long held that placement
and transfer of prisoners is a matter ultimately within the
discretion of DOC. Rust v. State, 582 P.2d 134, 136-38 (Alaska
1978). In Dwyer v. State, 449 P.2d 282, 284 (Alaska 1969), this
court upheld the transfer of inmates to out-of-state facilities.
(At present there are approximately 200 Alaskan prisoners
incarcerated with Brandon in Arizona and several hundred other
Alaskan prisoners in other locations around the country.)
Under the federal constitution, Brandon does not have a
right to avoid an inter-state transfer, to be incarcerated at a
particular prison, or to a particular classification. Meachum v.
Fano, 427 U.S. 215, 223-29 (1976); Olim v. Wakinekona, 461 U.S.
238, 244-48 (1983).
3 We did address whether this de facto linguistic isolation
constituted cruel and unusual punishment, and concluded that it did
not. Id. at 533.
4 See also Goodlataw v. State, Dep't of Health, 698 P.2d
1190, 1193 (Alaska 1985) ("Rehabilitation implies a therapeutic
program of working over a period of time to correct a complex
problem.") (emphasis omitted); LaBarbera v. State, 598 P.2d 947,
949 (Alaska 1979) (judicial intervention is appropriate only when
the state fails "to provide an appropriate rehabilitation
5 I note that apart from any constitutional basis for
review of DOC's transfer decision, no Alaska statute authorizes
judicial review of Brandon's complaint. The court relies on AS
33.30.061(b) to establish a link between transfer and the
constitutional right to rehabilitation. Section .061(b) declares
that an Alaskan prisoner may be moved to an out-of-state facility
"only if the commissioner determines that rehabilitation or
treatment of the prisoner will not be substantially impaired."
While the section requires consideration of the impact of transfer,
it vests this responsibility with DOC only. Nowhere does it
authorize judicial review. Indeed, elsewhere the statute declares
that "the commissioner shall designate the correctional facility to
which a prisoner is to be committed." AS 33.30.061(a). In Rust,
582 P.2d at 137-38, this language was interpreted to hold that all
prisoner transfers are ultimately within the discretion of DOC.
Rust relied on this delegation of authority to dismiss a
claim virtually identical to the one presented here. Petitioner
Rust sought an order prohibiting his transfer out of Anchorage,
where the presence of his family in Eagle River would "benefit his
rehabilitation." Id. at 135. This court rejected the appeal. We
found that placement of prisoners "is committed to the
administrative discretion of the Division of Corrections,"and "the
exercise of that discretion within constitutional bounds is not
subject to the control or review of the courts." Id. at 137, 138
n.11 (quoting Public Defender Agency v. Superior Court, 534 P.2d
947, 950 (Alaska 1975)).
To the extent the court grounds its finding of
jurisdiction in AS 33.30.061(b), it relies on that statute to
create a remedy that it plainly does not authorize. I would adhere
to our decision in Rust and hold there is no statutory basis for
judicial review of prisoner transfer claims.