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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson V. State, Dept. of Corrections (01/20/2006) sp-5974

Wilson V. State, Dept. of Corrections (01/20/2006) sp-5974, 127 P3d 826

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


MERLE G. WILSON, )
) Supreme Court No. S- 11120
Appellant, )
) Superior Court No. 1JU-02-00553 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) [No. 5974 - January 20, 2006]
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry R. Weeks, Judge.

          Appearances:   Merle  G.  Wilson,   pro   se,
          Palmer.   Marilyn J. Kamm, Assistant Attorney
          General,   and  Gregg  D.  Renkes,   Attorney
          General, Juneau, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.
          MATTHEWS,  Justice, with whom  BRYNER,  Chief
          Justice, joins, dissenting.

I.   INTRODUCTION
          Alaska    Statute   33.30.081(b)    and    22    Alaska
Administrative Code (AAC) 05.585(a) require the State  of  Alaska
to  transport a released prisoner to the place of arrest.   Merle
Wilson  argues  that, because he was arrested at  his  home,  the
statute  and regulation required the state to return him  to  his
home  on  Columbia  Cove,  3.5 miles by footpath  or  skiff  from
Tenakee  Springs, when it released him from prison in  May  2002.
We  conclude  that  the  states policy of  transporting  released
prisoners  to the community nearest the exact location  of  their
arrest  is,  under the particular circumstances of this  case,  a
reasonable interpretation of the statute and regulation.  Because
it  was  not unreasonable for the state to conclude that Columbia
Cove was within the community of Tenakee Springs, the statute and
regulation  were  satisfied when the state offered  to  transport
Wilson  to  the  community of Tenakee Springs.   We  consequently
affirm  the  superior court order denying Wilsons  administrative
appeal.
II.  FACTS AND PROCEEDINGS
          Merle Wilson was arrested at his home on Columbia Cove,
about  3.5  miles  from  the community  of  Tenakee  Springs,  on
Chichagof Island.  Wilson was eventually convicted of assault  in
the  second degree and imprisoned at the Lemon Creek Correctional
Facility  in  Juneau.   As his projected May  2002  release  date
neared,  he asked the Department of Corrections (DOC) to pay  for
transportation to his home on Columbia Cove.  There are no  roads
to  Columbia  Cove; it is accessible only by boat, footpath  from
Tenakee  Springs, or floatplane.  A chartered flight to  Columbia
Cove  from  Juneau would have cost about $350.   DOC  denied  his
request,  agreeing to take him to Tenakee Springs on a  regularly
scheduled flight, at a cost that DOC says is about $79.  There is
a  3.5-mile  footpath from Tenakee Springs  to  Wilsons  home  on
Columbia  Cove.1   The record does not reflect the  condition  of
this  footpath,  but  Wilson did not contend  in  the  agency  or
superior court proceedings that it was impassable at the time  of
his  projected May release, that he was physically  incapable  of
traversing  the  footpath, or that other impediments  or  hazards
might prevent him from walking to his home.
          Wilson  filed  an  administrative  grievance  with  DOC
alleging  that  22 AAC 05.585(a) requires DOC to  provide  return
transportation  to  a prisoners place of arrest.   Wilson  argued
that  his  place  of arrest was his home in Columbia  Cove.   DOC
denied  his  grievance,  on the ground  that  22  AAC  05.585  is
intended  to prevent inmates that have been transferred to  other
state institutions from being stranded in those cities upon their
release.   DOC  informed Wilson that its policy  was  to  provide
[inmates]  with  transportation to  the  city  of  their  arrest.
(Emphasis added.)  Wilson administratively appealed this decision
through  the grievance process.  DOC denied his appeal,  claiming
that  it  has consistently interpreted place of arrest as meaning
the community closest to the place of arrest.
          Wilson was released from prison on May 17, 2002 without
DOC-provided  transportation.  He seems to have arranged  at  his
expense  to  have himself flown by floatplane to  Columbia  Cove.
Wilson filed a post-release administrative appeal in the superior
court seeking a declaratory judgment concerning the meaning of AS
33.30.081  and 22 AAC 05.585 and asking that DOC be  required  to
pay  damages equal to the cost of a chartered flight to  Columbia
Cove  and  appellate  expenses.  DOC filed  no  opposition.   The
superior  court  held that DOCs interpretation of its  regulation
was  not  plainly erroneous or inconsistent with the language  of
the regulation.  It denied Wilsons request for damages, reasoning
          that the state could reasonably conclude that the regulation is
intended  to return released prisoners to the community in  which
they were arrested so as to protect them from being stranded in a
city that is not their own.
          Wilson appeals.
III. DISCUSSION
     A.   Standard of Review
          When  the superior court acts as an intermediate  court
of  appeal  in  an  administrative matter, we  independently  and
directly   review   the   agency   decision.2    Alaska   Statute
33.30.081(d) states:  The commissioner of corrections shall adopt
regulations governing the furnishing of transportation, discharge
payments,  and clothing to prisoners upon release  from  a  state
correctional  facility.   The  DOC commissioner  adopted  22  AAC
05.585  under this authority.  When an administrative  regulation
is adopted under statutory authority, we review the regulation to
determine  whether it is consistent with and reasonably necessary
to  carry out the purposes of the statutory provisions conferring
rule-making authority on the agency and whether it is  reasonable
and   not   arbitrary   considering  the  legislative   purpose.3
Moreover, we have recognized that an agencys interpretation of  a
law  within  its area of jurisdiction can help resolve  lingering
ambiguity  and  that we should exercise restraint  and  look  for
weighty  reasons before substituting our judgment for the agencys
in interpreting a statute or regulation.4
     B.    Neither AS 33.30.081 nor 22 AAC 05.585 Requires DOC To
Return         Released Inmates to the Precise Location of  Their
Arrest.

          Wilson   argues   that  AS  33.30.081  gives   released
prisoners a right to return transportation to the exact  site  of
the  arrest  in his case, his home on Columbia Cove.  He  alleges
that  22  AAC 05.585 simply restates that right and also outlines
the  process  if  a  prisoner chooses to  be  transported  to  an
alternative  destination.  DOC argues in response that  place  of
arrest means the community nearest the location of the arrest.
          Alaska Statute 33.30.081 states in pertinent part:
          (b)   The  commissioner of corrections  shall
          make  available return transportation to  the
          place  of  arrest  for  a  prisoner  who   is
          released from custody in a state correctional
          facility.
          
          . . . .
          
          (d)   The  commissioner of corrections  shall
          adopt regulations governing the furnishing of
          transportation,   discharge   payments,   and
          clothing  to  prisoners upon release  from  a
          state correctional facility at any stage of a
          criminal proceeding.
          
22 AAC 05.585(a) states in pertinent part:
          The   department  will  bear  the   cost   of
          transporting  a  prisoner  to  the  place  of
          arrest  upon  release, if  the  prisoner  was
          admitted  into  a  state  facility.    If   a
          prisoner  declines return transportation,  or
          requests  a  destination different  from  the
          place  of  arrest, the prisoner must  sign  a
          written   waiver.    Transportation   to   an
          alternative site may be provided  up  to  the
          actual  cost of return transportation to  the
          prisoners place of arrest. . . .
          
We  interpret  a  statute according to reason, practicality,  and
common  sense,  considering  the meaning  of  its  language,  its
legislative  history, and its purpose.5  The  goal  of  statutory
construction  is to give effect to the legislatures intent,  with
due  regard  for  the meaning the statutory language  conveys  to
others.6    We  apply  a  similar  analysis  in  interpreting   a
regulation.
          1.    The  meaning  of the phrase place  of  arrest  is
ambiguous in             the statute and the regulation.

          We give popular or common words their ordinary meaning,
if  the words are not otherwise defined in the statute.7  We  may
also consider how we have interpreted the words in other cases or
statutes or how administrative agencies have used the words.8
          [P]lace of arrest is not defined in AS 33.30.081 or  22
AAC   05.585.   Dictionary  definitions  for  place  support  the
conflicting   interpretations  proposed  by  Wilson   and   DOC.9
Definitions  supporting DOCs interpretation of place  as  meaning
community  include: a portion of space; an area with definite  or
indefinite  boundaries; a definite location. . . .  A  particular
town or city;10 an indefinite region or expanse; and a particular
region or center of population.11  Definitions supporting Wilsons
view  that   place  is  a precise location  include:  a  definite
location  .  .  .  A house, apartment, or other abode;12  and  an
individual dwelling or estate: house, homestead.13
          Wilson  argues  that place was meant to  be  a  precise
location rather than a community because 22 AAC 05.585(a)  offers
released  inmates transportation to an alternative site  if  they
choose  not  to  be returned to their place of arrest.  (Emphasis
added.)   But  DOC correctly argues that site has  many  possible
definitions  and  could denote either an entire  community  or  a
specific  building.   Definitions of site  include:  the  spatial
location  of an actual or planned structure or set of  structures
(as  a  building,  town, or monuments);14  local  position  of  a
building,  town, monument, or similar work either constructed  or
to  be  constructed,  esp. in connection with  its  surroundings;
scene of an action . . . or specified activity;15 and a place  or
location; esp., a piece of property set aside for a specific use.16
          Wilson  argues that we should look to the use of  place
in  AS  12.70.070,  which authorizes a police officer  holding  a
valid  warrant  to arrest the accused at any time and  any  place
where the accused may be found within the state.  But the meaning
of  place is no more specific in that statute.  Place could  mean
either  the  precise  location or, more  broadly,  the  community
encompassing the exact place of the arrest.
          DOC  responds that AS 12.70.070 has no relevance  here.
It  points to Alaska Criminal Rule 4(c)(2),17 which describes the
territorial limits of an arrest warrant as any place  within  the
jurisdiction  of the State of Alaska.  DOC points  out  that  the
          arresting officer need only indicate the community where the
offender  was arrested as the place of arrest.18  We do not  find
this  use  of  place of arrest to be helpful in  interpreting  AS
33.30.081.
          Our  prior  opinions have used place of  arrest  almost
exclusively to refer to the exact location of arrest,  but  those
cases  concerned  search-and-seizure  challenges  for  which  the
precise  location was relevant to determining whether the  search
was  incident to a lawful arrest.19  These cases do not  help  us
interpret place of arrest in AS 33.30.081.
          2.    There is no helpful legislative or administrative
history  for  the                term  place  of  arrest  in   AS
33.30.081 and 22 AAC 05.585.

          In  the  context of prisoner transportation in  Alaska,
the   phrase  place  of  arrest  first  appeared  in  the  Alaska
Administrative  Code before it appeared in the  Alaska  Statutes.
Until 1986, the pertinent statute was AS 33.30.160(a).  It simply
provided  that  [t]he  cost  of transporting  or  transferring  a
prisoner, either inside or outside the state, after temporary  or
final  commitment  shall be paid from the  appropriation  to  the
Department   of  Public  Safety.   Alaska  Statute   33.30.160(b)
directed  the Commissioner of Health and Human Services to  adopt
regulations governing the furnishing of transportation, discharge
payments, and clothing to prisoners upon release at any stage  of
criminal  proceedings.20   Per this authority,  the  commissioner
adopted  7  AAC 60.585, which introduced the concept of returning
released prisoners to their place of arrest and which stated:
          The   division  shall  bear   the   cost   of
          transporting  a person to the  place  of  his
          arrest,  within  the State  of  Alaska,  upon
          release, only after having been admitted into
          a state institution or contract facility.  If
          a  prisoner requests an alternate designation
          than  his  place of arrest, he  must  sign  a
          waiver  which  so states.  Transportation  to
          alternative  sites selected by  him  must  be
          provided,  or  costs paid up  to  the  amount
          which  it would be necessary to pay  for  his
          return to the actual place of arrest.
          
(Emphasis added.)  This regulation became effective September 10,
1977.21   No  administrative history  brought  to  our  attention
reveals  what the commissioner meant by the term place of  arrest
in 7 AAC 60.585.
          On  January  25, 1985 House Bill 114 was introduced  at
the  request  of  the governor.22 The bill proposed  a  wholesale
revision of Chapter 30 of Title 33 of the Alaska Statutes.23  The
bill acknowledged that it would affect administrative regulations
and  allowed  all  regulations  adopted  under  the  now-repealed
statutes to continue in effect until amended or repealed  by  the
commissioner of corrections.24  The bill was enacted  and  signed
into  law  in 1986.25  As adopted, the bill repealed AS 33.30.160
and  enacted  AS  33.30.081.26  There was no  discussion  of  the
          meaning of place of arrest during the legislative process.  The
only  indication of the legislatures intent consists of testimony
before  the  House  Judiciary Committee by an assistant  attorney
general  that  the sections intent was to get the  prisoner  back
home.27   This  statement of purpose is not helpful here  because
home  might  mean  either the community in general  or  an  exact
location.   And home is potentially inconsistent with   place  of
arrest  because  the prisoner may not have been arrested  at  his
actual residence or even in his home community.
          The language of  22 AAC 05.585 mirrors the language  in
AS 33.30.081 and former 7 AAC 60.585 without further explanation.
We  are  unaware of any meaningful administrative history for  22
AAC 05.585.
          3.     DOCs  interpretation  of  place  of  arrest   is
reasonable  and                 not arbitrary  and  achieves  the
policy underlying AS 33.30.081.

          DOC  argues that its interpretation of AS 33.30.081  is
consistent  with the legislative intent to avoid  having  inmates
released from prisons at great distances from their homes without
the  funds  for  transportation from the prison to the  community
nearest to the inmates place of arrest.  Where, as here, there is
lingering ambiguity about the meaning of a statute or regulation,
an   agencys  interpretation  of  a  law  within  its   area   of
jurisdiction is helpful.28  We believe that DOCs interpretation of
AS  33.30.081 reasonably achieves the statutes purpose.   Because
there  is  evidence  that Columbia Cove  is  within  the  Tenakee
Springs  community, DOCs decision to transport Wilson to  Tenakee
Springs instead of Columbia Cove was reasonable.29
          DOCs  policy of transporting released prisoners to  the
community  nearest their place of arrest has historical  support.
States have paid for a released prisoners transportation at least
since the early twentieth century.30  Many early statutes provided
transportation for the prisoner only to the community  where  the
prisoner was convicted or to the prisoners home community.31
          DOCs  policy  better  achieves the  stated  legislative
purpose  of  getting  the prisoner back home than  the  statutory
language  itself.  DOC allows a prisoner the option  of  choosing
transportation to a place other than the place of arrest so  long
as  transportation  to  the  alternative  location  is  not  more
expensive  than  transportation to the place of  arrest.32   This
option  affords  a  prisoner who was not  arrested  in  his  home
community the opportunity to be returned home rather than to  the
place of his arrest.
          DOCs  interpretation of AS 33.30.081(b)  is  consistent
with the underlying policy of AS 33.30.081.  Other provisions  in
AS  33.30.081 balance the right of prisoners to appear  in  court
proceedings   against  DOCs  burden  of  paying   the   cost   of
transportation.  For example, AS 33.30.081(f) allows a  court  to
order  a prisoner to appear only after the court determines  that
the  prisoners  presence is essential to the just disposition  of
the   action.   It  also  requires  the  court  to  provide   the
Commissioner  of  Corrections an opportunity to  comment  and  to
consider   alternatives  to  a  personal  appearance,   such   as
          deposition and telephonic testimony.33 The cost of transporting
the  prisoner  to court must be paid by the party requesting  the
appearance34 unless the prisoner is the party and is found to  be
indigent.35  If DOC is required to bear any cost and the prisoner
receives a money judgment, the court can require the prisoner  to
repay  DOC  for  his transportation costs.36  In interpreting  AS
33.30.081(b),   DOC   has   adopted  a   policy   that   [r]eturn
transportation shall be by the most cost-effective and  available
means.37  DOCs policy reasonably achieves the legislative purpose
of  getting  the  prisoner home38 in a cost-effective  manner  by
providing   transportation   to   the   community   nearest,   or
encompassing,  the  place  of arrest rather  than  to  the  exact
location of the arrest.39
          DOCs  interpretation is also more in line with  reason,
practicality, and common sense40 because it avoids absurd results.
For  example, it would not be practical to return a prisoner  who
was  arrested  at  or near the scene of the crime  back  to  that
precise location, which might be the victims house or office.
          DOCs  decision to transport Wilson to the community  of
Tenakee Springs was reasonable given the undisputed facts in this
case.   It  is  undisputed that Columbia Cove is accessible  from
Tenakee Springs by a 3.5 mile footpath; there is no indication in
the  record that the path was impassable when Wilson was released
or  that  Wilson  was  physically incapable of  using  the  path.
Wilsons  sentencing statement, included by Wilson in his  excerpt
in  this  case, alleged that Tenakee Springss regulations  govern
conduct in Columbia Cove.  His sentencing statement also asserted
that  a  community  committee was formed in  Tenakee  Springs  to
assist with law enforcement issues in Columbia Cove.
          There  may  be  circumstances  in  which  it  would  be
unreasonable  for  DOC  to simply transport  a  releasee  to  the
community nearest the locus of arrest.  Indeed, even transporting
a   releasee  to  a  transportation  hub  within  the   community
encompassing  the   site  of  arrest  might  be  circumstantially
unreasonable, because in the larger communities, such hubs  might
be many miles from the site of the arrest.  Consequently, factors
such   as   distance,  terrain,  physical  incapacity,  hazardous
conditions,   and   expense  might  have   a   bearing   on   the
reasonableness  of  DOCs  interpretation  of  the   statute   and
regulation  in a given case.  The ultimate purpose  of  returning
prisoners  to  their  homes  or  home  communities   to   prevent
stranding  them  would not be served if they were transported  to
their  home  communities but were then prevented from  completing
the  journey  by  circumstances  such  as  terrain,  weather,  or
expense.   Because the facts in this case are undisputed, we need
not consider these sorts of circumstances further here or attempt
to list the factors that could be relevant.41
          The   undisputed  facts  in  this  case   support   the
conclusion  that  Columbia Cove was part of the  Tenakee  Springs
community.  It was therefore reasonable for DOC to provide Wilson
with  transportation to Tenakee Springs upon his release  and  it
was  not  unreasonable for DOC to decline to return  him  to  the
Columbia Cove beach near his home.
IV.  CONCLUSION
          For the reasons discussed above, we AFFIRM.
MATTHEWS,  Justice,  with  whom  BRYNER,  Chief  Justice,  joins,
dissenting.
          The   question  presented  is  whether  the   statutory
requirement  that  [t]he commissioner of corrections  shall  make
available  return transportation to the place  of  arrest  for  a
prisoner  who  is  released from custody in a state  correctional
facility1 means that a released prisoner who was arrested at  his
home  is entitled to return transportation to his home, or merely
to  the  public transportation terminus in the community  nearest
his  home.   I think the former meaning is right for the  reasons
that follow.2
          First, place of arrest suggests a particular spot,  not
a broad geographical area.3  If the legislature had intended that
released prisoners need only be returned to the community nearest
their place of arrest4 it probably would have said so.
          Second, the legislative history supports the conclusion
that  it  was  the  intent  of the legislature  to  pay  for  the
transportation of a prisoner to his home if that was where he was
arrested.   The  assistant  attorney general  who  explained  the
objective  of  the  statute  to  the  House  Judiciary  Committee
testified  that the statutes intent was to get the prisoner  back
home.5
          Third,  considerations of fairness on which the statute
is  based  also suggest that a literal construction is the  right
one.   Just  as it may be unfair to strand released prisoners  in
the  city of their incarceration, it can also be unfair to strand
them  at  the airport or ferry terminal of the community  nearest
their  home.   This  will  be  true  where  the  terminal  is   a
significant distance from a prisoners home and the latter can  be
reached  only  by an additional expenditure of money  or  effort.
The  general  idea  of the statute is that since  the  state  has
expended the effort to forcibly take the prisoner away from where
he  was arrested, it is fair that the state expend something like
the same effort to return him after he has served his time.  Most
released prisoners are impecunious and even a cab fare can  be  a
significant burden.  Further, where cabs, buses, or water  taxis,
are  unavailable, simply telling a prisoner to take a hike  seems
like  a callous response that is inconsistent with the underlying
spirit of the statute.6
          For these reasons I respectfully dissent.
_______________________________
     1     Wilson states that his property is 3.25 miles from the
core area of Tenakee Springs.

     2     Alyeska  Pipeline Serv. Co. v. DeShong, 77 P.3d  1227,
1231 (Alaska 2003).

     3    Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971).

     4     Bartley  v. State, Dept of Admin., Teachers Ret.  Bd.,
110 P.3d 1254, 1261 (Alaska 2005).

     5    Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).

     6     Natl  Bank  of  Alaska v. Ketzler, 71  P.3d  333,  334
(Alaska 2003).

     7     Alaskans for Efficient Govt v. Knowles, 91  P.3d  273,
276  n.4  (Alaska  2004)  (citing Norman  J.  Singer,  Sutherland
Statutory Construction  47.28 (6th ed. 2000)).

     8     See,  e.g.,  id.  at 276 (looking to  usage  in  prior
opinions to help define term initiative); Grimm,77 P.3d  at  430,
433-34  (stating  agencys interpretation of  statute,  while  not
binding, can provide useful guidance).

     9     DOCs brief quotes a definition from the fourth edition
of  Blacks Law Dictionary.  The more recent seventh edition  does
not define place.

     10    American Heritage Desk Dictionary 722 (1981).

     11     Websters  Third  New  International  Dictionary  1727
(1966).

     12    American Heritage Desk Dictionary 722.

     13    Websters Third New International Dictionary 1727.

     14    Websters Ninth Collegiate Dictionary 1102 (1990).

     15    Websters Third New International Dictionary 2128.

     16    Blacks Law Dictionary 1392 (7th ed. 1999).

     17    Alaska Rule of Criminal Procedure 4(c)(2) states [t]he
warrant may be executed or the summons may be served at any place
within the jurisdiction of the State of Alaska.

     18    DOC alleges that an arresting officer must complete  a
Return form which states in part: I received the above warrant on
_______,  and executed it by arresting the defendant and  serving
the defendant with a copy of this warrant in _________, Alaska on
________.   The  March  2000 version of the  same  form  contains
similar language.

     19    See, e.g., Zehrung v. State, 569 P.2d 189, 193 (Alaska
1977)  (noting  place of arrest as intersection of  Boniface  and
Northern Lights); McCoy v. State, 491 P.2d 127, 131 (Alaska 1971)
(upholding  search conducted at police station rather than  place
of  arrest as search incident to lawful arrest).  But see Wortham
v.  State, 519 P.2d 797, 799 (Alaska 1974) (using broader meaning
of  place of arrest to note that due process requires preliminary
hearing  on parole revocation at or reasonably near the place  of
the alleged parole violation or arrest).

     20     AS  33.30.160  made the Department of  Public  Safety
responsible  for transporting all prisoners.  The  Department  of
Public  Safety  and the Department of Health and Social  Services
entered into an agreement that made the Department of Health  and
Social  Services responsible for transporting prisoners  released
from  a  state facility.  See 1977 Formal Op. Atty Gen. 39.   The
Department  of Corrections was then a division in the  Department
of  Health and Social Services.  Executive Order No. 55  elevated
the   Division  of  Corrections  to  a  department-level  agency.
Executive Order No. 55  1 (1984).

     21    Register 63, October 1977.

     22    House Bill (H.B.) 114, 14th Leg., 1st Sess. (1986).

     23    Id.

     24    H.B. 114,  12; ch. 88,  13, SLA 1986.

     25    Ch. 88,  6, SLA 1986.

     26    Ch. 88,  6, 12, SLA 1986.

     27     Minutes of March 30, 1985, hearing before  the  House
Judiciary  Committee,  13th Legislature (1985-86)  (statement  of
Michael Stark, assistant attorney general and DOC counsel).

     28     Bartley v. State, Dept of Admin., Teachers Ret.  Bd.,
110 P.3d 1254, 1261 (Alaska 2005).

     29    In two affidavits filed in this court, Wilson referred
three times to his home in Tenakee Springs.

     30    Amos W. Butler, Treatment of the Released Prisoner,  1
J.  Am. Inst. Crim. L. & Criminology 403, 405 (May 1910 to  March
1911).

     31     See L.D. Weyand, A Study of Wage-Payment to Prisoners
as  a  Penal  Method, 10 J. Am. Inst. Crim. L. & Criminology  558
(May  1919  to  February 1920) (collecting early  state  statutes
regulating  transportation of prisoners upon release  from  state
facilities).

     32      Dept.   of  Corrections,  Policies  and  Procedures,
Transportation Upon Release, Index # 818.07, VI. A-C  (Eff.  Oct.
1, 1990).

     33    AS 33.30.081(f).

     34    AS 33.30.081(g).

     35    AS 33.30.081(h).

     36    Id.

     37      Dept.   of  Corrections,  Policies  and  Procedures,
Transportation Upon Release, Index # 818.07, VI. B (Eff. Oct.  1,
1990).

     38     Minutes of March 30, 1985, hearing before  the  House
Judiciary  Committee,  13th Legislature (1985-86)  (statement  of
Michael  Stark,  assistant attorney general and DOC  counsel,  on
Tape 63, Side One).

     39     The  DOC investigator responding to Wilsons grievance
filed a report, which found:

          Mr.  Wilsons interpretation of 22 AAC  05.585
          is  incorrect; the state does not provide  an
          option  to be returned to the exact place  of
          arrest  upon release.  Just as a  poacher  is
          not  returned  to the bush or a  bank  robber
          returned to the bank, Mr. Wilson shall not be
          returned  to the exact place of  arrest.   22
          AAC  05.585  is  intended to prevent  inmates
          that  have  been transferred to  other  state
          institutions  from  being stranded  in  those
          cities upon their release, but rather provide
          them with transportation to the city of their
          arrest. . . .  Mr. Wilson will be returned to
          Tenakee  upon his release, unless he declines
          or  requests  an  alternative destination  of
          equal value.
          
     40    Grimm, 77 P.3d at 427.

     41     Wilson  implies in his reply brief  that  hiking  the
footpath   without  a  rifle  in  May,  when  brown   bears   are
concentrated along the beaches, would be unsafe.  He never raised
this contention before the agency or in the superior court or  in
his opening brief in this court.  Although undue hazard, such  as
from  wildlife  or  weather, might be a factor  relevant  to  the
reasonableness of DOCs transportation decision in a  given  case,
Wilson  has waived any reliance on that factor here.  See Zok  v.
State,  903  P.2d 574, 576 n.2 (Alaska 1995) (holding that  where
pro  se litigant provided no substantive argument on point in his
opening  brief, and only mentioned the courts alleged failure  to
admit evidence in his reply brief, the issue was waived).

     1    AS 33.30.081(b).

     2    In my view this is a question of law on which the court
should exercise its independent judgment:  Questions of law which
do not involve any particular agency expertise are reviewed under
the   substitution  of  judgment  standard.   Questions  of   law
involving  agency  expertise are reviewed  under  the  reasonable
basis  test.   Arnesen v. Anchorage Refuse, Inc., 925  P.2d  661,
664  (Alaska 1996) (citations omitted) (holding that the question
whether  self-employment as a real estate sales agent  is  a  job
within the meaning of a provision of the Workers Compensation Act
is  a  question  of  law suitable for judicial  determination  de
novo).   Here  the state does not argue that the  term  place  of
arrest is something that is uniquely within the knowledge of  the
Department  of Corrections nor, in my opinion, could a reasonable
argument  to this effect be made.  It also follows that, although
subsection (d) of the statute instructs the department  to  issue
regulations   governing  the  furnishing  of  transportation   to
released  prisoners, I cannot agree with the court (see Slip  Op.
at  4)  that this bland language could authorize a regulation  in
contravention of the place of arrest requirement in (b).

     3     Many  Alaska communities encompass a broad  area,  and
sometimes  much  of  the  area is only thinly  settled.   Tenakee
Springs is an example.  According to a state monograph, it  is  a
community  of  some 100 people, consisting of about 47  permanent
households that are situated along a single trail that  parallels
the  north  shore of Tenakee Inlet for approximately  ten  miles.
Most of the houses are concentrated along a two-mile stretch near
the  center  of the town, but others are located along  the  full
length  of  the  trail.   Ken Leghorn &  Matt  Kookesh,  Div.  of
Subsistence,  Alaska Dept of Fish & Game, Timber  Management  and
Fish  and Wildlife Utilization in Selected Southeast Communities:
Tenakee Springs, Alaska 8, 13 (1987).

     4    See Slip Op. at 11.

     5    Slip Op. at 10 n.27.

     6     Some  walks  home have special hazards.  For  example,
brown  bears  are common on the shores of Tenakee  Inlet,  and  a
concentration  of them exists at Indian River,  which  the  trail
from the town core to Columbia Cove crosses.  Bear encounters are
said to be on the increase both in the town core and Indian River
according  to  the state-sponsored community profile  of  Tenakee
Springs.  City of Tenakee Springs, Tenakee Springs Community Plan
15-16,    33    (July   26,   2001   Revision),   available    at
http://www.commerce.state.ak.us/dca/plans/TenakeeSpringsrev2001.p
df.   Of course it is unlikely that any particular person walking
through brown bear country will actually be attacked, but one can
never  be  certain,  and many Alaskans in bear  country  carry  a
firearm  for  protection.  Recently released prisoners,  such  as
Wilson, presumably do not have this option.

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