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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lewis v. State, Dept. of Corrections (07/28/2006) sp-6030

Lewis v. State, Dept. of Corrections (07/28/2006) sp-6030, 139 P3d 1266

     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,


) Supreme Court No. S- 11892
Appellant, )
) Superior Court No. 3AN-03-7063 CI
v. )
) O P I N I O N
DEPARTMENT OF CORRECTIONS, ) No. 6030 - July 28, 2006
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:   Ted Stepovich, Law  Office  of
          Ted   Stepovich,  Anchorage,  for  Appellant.
          Marilyn  J. Kamm, Assistant Attorney General,
          and   David  W.  M rquez,  Attorney  General,
          Juneau, for Appellee.

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

          EASTAUGH, Justice.

          Rhoda  Lewis is a state prisoner in the custody of  the
Alaska Department of Corrections (DOC).  We consider here whether
she  was denied due process when DOC rejected her request  to  be
examined  by  a  physician of her choosing  for  the  purpose  of
gathering  evidence  to  support her  application  for  executive
clemency.   Because  Lewis did not make  out  any  showing  of  a
medical  condition that might have entitled her to be  considered
for executive clemency, we conclude that DOC did not deny her due
process and therefore affirm the judgment of the superior court.
          Rhoda  Lewis was convicted of second-degree  murder  in
1997  and  was  sentenced to serve sixty  years  in  prison  with
fifteen  years  suspended.  Her sentence was upheld  on  appeal.1
She  will  not  be  eligible  for  parole  until  2011.   She  is
incarcerated at Hiland Mountain Correctional Center,  a  facility
administered by the Alaska Department of Corrections (DOC).
          In September 2002 Lewis applied for executive clemency,
citing two reasons:  She claimed that her crime was an aberration
and  will  never happen again, and that her health was  poor  and
appears  to  be worsening.  She stated that she feared  that  she
would  not survive until 2011.  She also noted her good  behavior
and  work ethic in prison.  In support of her application,  Lewis
stated  that  she  was  submitting letters from  individuals  and
medical  records  from Providence Medical Center,  Alaska  Native
Medical Center, Fairbanks Clinic, and DOC.  The appellate  record
does not contain any of those materials.
          In  December  2002 the Alaska Board of Parole  informed
Lewis  that  she  was not eligible for executive  clemency.   The
board  explained  that it will not consider  an  application  for
executive  clemency  before an applicant is eligible  for  parole
except   upon  a  substantial  showing  of  innocence  or   other
exceptional circumstance arising since trial.
          In   January   2003   Lewis  began  preparing   another
application  for  executive clemency.  In February  her  attorney
wrote to the Hiland Mountain superintendent requesting that Lewis
be  examined by a doctor of her own choice.  The letter explained
that  the  examination  was essential for a  number  of  reasons,
including  ascertaining whether another application for executive
clemency was appropriate.  Assistant Attorney General John Bodick
responded  and  denied Lewiss request to be seen  by  an  outside
doctor  because [t]he Department has a long-standing  policy  and
practice  of  denying requests for outside medical  examinations.
Bodick  noted that neither Lewiss attorney nor DOC medical  staff
had  indicated  anything  unusual or extraordinary  about  Lewiss
medical condition warranting a deviation from standard practice.
          On  March 7 Lewiss attorney wrote to Bodick complaining
that  Lewis  had  yet to receive her results from  blood  samples
taken  two  months  prior.   Bodick responded  on  April  21  and
informed Lewiss attorney that a DOC physician had counseled Lewis
regarding  the  results sometime between March 7  and  April  21.
According  to Bodick, DOC medical staff had informed Bodick  that
Lewis was generally in good health and that it appears there  are
no  legitimate medical grounds for her to be released from prison
through the clemency process.
          In  the  meantime, on March 12 Lewis filed a  grievance
and asked to see a doctor of her own choice at her own cost, both
to  support her clemency application and because of her  distrust
of   DOC  medical  care  providers.   The  grievance  coordinator
immediately  rejected the petition, noting that Lewiss  attorneys
letter   to   Bodick   had  removed  the  grievance   from   DOCs
          On  April  30  Lewis filed a superior  court  complaint
          against the state, requesting declaratory judgments resolving the
question regarding right of access to independent medical opinion
evidence  and  regarding  the  adequacy  of  the  DOCs  grievance
          In   November  2004  both  parties  moved  for  summary
judgment.   The  state  argued that  the  superior  court  lacked
jurisdiction  because  Lewis  had not  alleged  a  constitutional
violation and because Lewiss claim regarding the adequacy of  the
grievance  procedure  was  moot.   Lewis  denied  that  she   was
asserting  a  right to medical care; instead, she explained  that
she  was arguing that she had exercised her First Amendment right
to  apply  for clemency and was being denied the right to  gather
evidence to support that application.  The state also argued that
Lewiss  claims  regarding  the clemency  process  were  not  ripe
because  she  did  not have a legal right to apply  for  clemency
until 2011.  Finally, the state argued that because prisoners  do
not  have  a liberty interest in clemency, there can  be  no  due
process violation associated with the clemency process.
          On  January 28, 2005 the superior court granted summary
judgment  to  the state.  The superior court decided that  Lewiss
claim  was ripe and that the court had jurisdiction to  hear  the
case.  As to the parties substantive arguments, the court decided
that  no  constitutional  violation  occurred  in  the  grievance
procedure when Lewiss request for an independent medical exam was
denied.  And the court decided that because Lewis does not have a
cognizable  liberty interest in clemency, she cannot have  a  due
process  claim  with respect to clemency procedures.   The  court
consequently granted summary judgment to the state on both counts
in Lewiss complaint.
          In  an  order  on  reconsideration, the superior  court
modified the reasoning of its previous decision.  The court noted
that  it  had overlooked directly controlling precedent in  which
the   United  States  Supreme  Court  stated  that  some  minimal
procedural  safeguards apply to clemency proceedings.2   But  the
superior court concluded that the states denial of Lewiss request
to  see  a private doctor to support her application for clemency
was  not an arbitrary or unconscionable denial of access  to  the
clemency process that the State has established.
          Lewis appeals, arguing that she has a due process right
to  gather  evidence  to  support her application  for  executive
     A.   Standard of Review
          We  review a superior courts grant of summary  judgment
de novo,  drawing all factual inferences in favor of, and viewing
the  facts  in  the  light most favorable to, the  non-prevailing
party.3   We  review  questions of law, including  constitutional
questions, using our independent judgment and will adopt the rule
of law that is most persuasive in light of precedent, reason, and
     B.   The Clemency Issue Is Ripe for Decision.
          The  superior court concluded that Lewiss claim is ripe
because there is an actual controversy about whether Lewis has an
exceptional   health  condition  that  might  warrant   executive
          clemency prior to parole eligibility.
          The  state argues that Lewiss clemency application will
not  be  ripe  until  Lewiss 2011 applications for  discretionary
parole  and  executive clemency are denied.   But  this  argument
conflicts  with the parole boards own eligibility criteria.   The
boards informational booklet for prospective clemency applicants,
Executive Clemency in Alaska, states:
          Generally,    applications   for    executive
          clemency  will not be considered until  after
          the  person  has served some portion  of  the
          sentence.    Applications   will    not    be
          considered  until the person has reached  his
          or  her  parole period (where applicable)  or
          has been denied parole.  Applications may  be
          considered  earlier only upon  a  substantial
          showing   of   innocence   or   some    other
          exceptional circumstance arising since trial,
          which  clearly justifies a possible extension
          of executive clemency.
(Emphasis   added.)   Therefore  an  application  presenting   an
exceptional  circumstance may be considered before the  applicant
has  reached  her  parole period.  Lewis argued in  the  superior
court  and  argues  here on appeal that she  hopes  to  prove  an
exceptional circumstance making clemency appropriate  before  she
becomes eligible for parole. Because it is at least theoretically
possible that a prisoner could suffer from an exceptional  health
condition warranting executive clemency before she reaches parole
eligibility,  the superior court did not err in  concluding  that
Lewiss constitutional claim is ripe.5
     C.   DOC  Did  Not  Violate  Lewiss Procedural  Due  Process
          Rights  by  Denying Her Request To  Be  Examined  by  a
          Private Doctor.
          In  its  order  on reconsideration, the superior  court
decided  that the states denial of Lewiss request to be  examined
by  a  private doctor did not violate due process.   Both parties
acknowledge  on  appeal  that the states  clemency  process  must
comport  with  some  amount  of due  process.   But  the  parties
disagree  about the extent of due process safeguards in  clemency
proceedings.  Lewis argues that she has a right under the  Alaska
Constitution  to  be seen by a doctor of her choosing  to  gather
evidence  to  support  her application for clemency.   The  state
argues  that  the current clemency process provides adequate  due
process  protections  and that the state is not  constitutionally
required  to allow a prisoner to see a doctor of her choosing  to
support her application for clemency.
          We  agree with the superior court that some due process
protections  apply to clemency proceedings.6  Because  the  state
allows prisoners to apply for executive clemency, it must provide
applicants  with some procedural due process during the  clemency
process.7   If a prisoner relies on a particular basis recognized
by  the  state  as a potential ground for clemency, the  prisoner
must  have a fair opportunity to make a factual showing that  the
          ground has been satisfied.
          We apply the test outlined by the United States Supreme
Court  in  Mathews v. Eldridge8 in deciding whether Lewis  had  a
fair  opportunity  to  demonstrate  that  her  medical  condition
satisfies  the boards clemency eligibility criteria.9  This  test
takes these factors into account:
          First,  the  private interest  that  will  be
          affected by the official action; second,  the
          risk  of  an  erroneous deprivation  of  such
          interest through the procedures used, and the
          [probable]  value, if any, of  additional  or
          substitute    procedural   safeguards;    and
          finally,  the Governments interest, including
          the  function  involved and  the  fiscal  and
          administrative burdens that the additional or
          substitute   procedural   requirement   would
          We  assume  here  both  that Lewis  has  a  significant
interest in being able to generate information needed to  support
her  clemency  application and that the state  has  a  legitimate
interest  in  structuring prisoners access to medical  attention.
We also assume that the states decision not to grant Lewis access
to a doctor of her own choice could have the effect of preventing
her  from  generating information supporting her application  for
clemency,  thereby  denying her access to  potentially  important
relief.   But Lewis has not demonstrated any real-world value  of
gaining  access  to a private doctor.  Lewis did not  attempt  to
rely  on  any readily available information to make out a showing
suggesting  that she has a medical condition that  might  justify
clemency.   She did not describe to DOC or to the superior  court
any specific medical problem that might qualify as an exceptional
circumstance  warranting clemency.  Although  she  stated  in  an
affidavit   that  she  had  been  experiencing  extreme   fatigue
symptoms,  she  never explained to DOC or to the  superior  court
whether   or   how   those  symptoms  indicated  an   exceptional
circumstance  warranting clemency.  She did not point  to  prison
medical  records,  pre-incarceration  medical  records,  or   any
opinion  of  prison  medical  staff, lay  witnesses,  or  outside
doctors   suggesting  she  has  a  specific   medical   condition
potentially  justifying clemency.11  Absent  a  showing  of  some
medical condition that would justify further inquiry in order  to
make  out  an exceptional circumstance clemency application,  and
that  might justify examination by a medical professional of  the
prisoners own choosing, there is no due process denial.
          Lewis  argues  that  two cases from the  United  States
Court  of  Appeals for the Eighth Circuit  Noel v.  Norris12  and
Young v. Hayes13  support her argument that she has a right to be
seen  by  a  private  doctor to gather evidence  to  support  her
clemency  application.   In Noel, a prisoner  under  sentence  of
death claimed that the State of Arkansas violated his due process
rights by interfering with his ability to prepare and present his
case for executive clemency.14  The state refused to allow Noel to
undergo  a  particular kind of brain-scan procedure to prove  his
          assertion that his brain damage ought to be considered on the
question  of whether he deserved clemency.15  But the  state  had
allowed Noel to present a four-hundred page record supporting his
clemency application; that record included some evidence of Noels
brain  damage.16  The Eighth Circuit held that the states process
was not so arbitrary as to be unconstitutional and that the state
did   not  prohibit  Noel  from  using  the  procedure   it   had
established.17  Like Noel, Lewis was not precluded from presenting
evidence  of  her  medical condition,  but  was  not  allowed  to
investigate   her   heath  situation  with  an  outside   medical
examination.18  Noel therefore does not advance Lewiss argument.
          In  Young,  the Circuit Attorney for the  City  of  St.
Louis threatened to fire one of the lawyers under her supervision
if  that lawyer gave the governor information supporting a death-
row inmates clemency petition.19  The Eighth Circuit held that the
Circuit  Attorneys conduct was fundamentally unfair and  that  it
unconscionably interfere[d] with a process that the State  itself
has created.20  Lewiss case is distinguishable from Young because
there is no indication any state official intentionally tried  to
derail Lewiss efforts to apply for executive clemency.21
          Lewis also cites Hilbers v. Municipality of Anchorage22
and  Kendall  v. State, Division of Corrections23 to support  her
argument  that the Alaska Constitution requires DOC  to  allow  a
prisoner  to  be  examined by the doctor of her own  choosing  to
support  an  application  for clemency.   Neither  case  supports
Lewiss  argument.   In  Hilbers, we  discussed  the  due  process
protections that extend to the issuance of business licenses  for
massage parlors, not applications for clemency.24  And in Kendall,
a medical malpractice case, we affirmed the superior courts grant
of  summary  judgment  to  the state in  part  because  plaintiff
Kendall presented no expert affidavits and did not show, based on
the  evidence that was presented, that a reasonably arguable case
of  medical  negligence  existed.25   We  therefore  applied  the
prevailing summary judgment standard; we did not create  a  right
for  inmates like Lewis to secure medical evidence to  support  a
claim for clemency.
          Because   Lewis  failed  to  point  to  any   plausible
indications  that she had a medical condition that, if  confirmed
by  a  physician, might entitle her to clemency,26  DOC  did  not
violate  any procedural due process protections that  applied  to
Lewis when she sought executive clemency.27
     D.   The  Board  Is  Not  Operating a  Clemency  Application
          Process Outside  Its Statutory Authority.
          Lewis argues that the board does not have authority  to
establish clemency eligibility criteria.
          The   Alaska  Constitution  gives  the  governor  broad
authority  to grant executive clemency.  Article III, section  21
of  the  Alaska Constitution states in part: Subject to procedure
prescribed  by law, the governor may grant pardons, commutations,
and  reprieves, and may suspend and remit fines and  forfeitures.
Two  statutory  provisions discuss the governors clemency  power.
Alaska  Statute 33.20.070 restates the constitutional  provision.
Alaska Statute 33.20.080(a) provides that the governor may  refer
          applications for executive clemency to the board of parole and
that  the  board must investigate and report to the  governor  on
each clemency case.
          The parties briefs and the record both suggest that the
governor  has decided to refer all applications to the board  and
that  the  board has established clemency qualification criteria.
Lewis  argues that the board has no authority to establish  those
criteria.   But  that  authority is  inherent  in  the  governors
executive clemency power.28  The board has not acted outside  its
authority here.
          Because  we  agree with the superior  court  that  DOCs
denial  of Lewiss request to be examined by a private doctor  did
not violate due process under the circumstances, we AFFIRM.
     1     Lewis  v. State, Mem. Op. & J. No. 4021 (Alaska  App.,
March 24, 1999), 1999 WL 158951.

     2     See Ohio Adult Parole Auth. v. Woodward, 523 U.S. 272,
289 (1998) (emphasis in original).

     3    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).

     4    Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006).

     5     See  AS 22.10.020(g) (In case of an actual controversy
in  the  state,  the  superior  court,  upon  the  filing  of  an
appropriate pleading, may declare the rights and legal  relations
of  an  interested party seeking the declaration, whether or  not
further relief is or could be sought.); Brause v. State, Dept  of
Heath  &  Soc. Servs., 21 P.3d 357, 360 (Alaska 2001) ([R]ipeness
turns on the fitness of the issues for judicial decision and  the
hardship  to  the  parties  of withholding  court  consideration.
(internal quotation marks omitted)).

     6      See   Woodward,  523  U.S.  at  289   (OConnor,   J.,
concurring);  see also INS v. St. Cyr, 533 U.S. 289,  345  (2001)
(The  furthest  our  cases  have gone  in  imposing  due  process
requirements upon analogous exercises of Executive discretion  is
. . . requir[ing] minimal procedural safeguards for death-penalty
clemency proceedings, to prevent them from becoming so capricious
as  to  involve a state official flipp[ing] a coin  to  determine
whether to grant clemency. ) (quoting Woodward, 523 U.S. at 289);
Noel  v.  Norris, 336 F.3d 648, 649 (8th Cir. 2003) (holding  due
process  not  violated where inmate was not  allowed  to  undergo
special  brain  scan, but was able to present  four-hundred  page
record  that included evidence of brain damage in support of  his
clemency  application);  Gilreath  v.  State  Bd.  of  Pardons  &
Paroles,  273 F.3d 932, 934 (11th Cir. 2001) (holding absence  of
one   member  of  clemency  board  from  oral  hearing  and  mere
appearance of impropriety did not violate due process in clemency
context);  Young  v.  Hayes, 218 F.3d 850, 853  (8th  Cir.  2000)
(holding   due   process  was  violated  where   state   official
intentionally tried to sabotage inmates clemency application).

     7     See Matson v. State, Commercial Fisheries Entry Commn,
785 P.2d 1200, 1206 (Alaska 1990) ([A] state-created right may in
some circumstances constitute a sufficient entitlement to trigger
the  right  to procedures under the due process clause.)  (citing
Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981)).

     8    Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

     9    See State, Dept of Health & Soc. Servs. v. Valley Hosp.
Assn, 116 P.3d 580, 583 (Alaska 2005); see also Brandal v. State,
Commercial  Fisheries  Entry Commn, 128  P.3d  732,  738  (Alaska

     10    Valley Hosp. Assn, 116 P.3d at 583 (quoting Whitesides
v.  State, Dept of Pub. Safety, Div. of Motor Vehicles,  20  P.3d
1130,  1135  (Alaska 2001)).  Valley Hospital  Assn  and  Brandal
quoted   Mathews   v.  Eldridge  but  inadvertently   substituted
probative  for  probable.  See Brandal, 128 P.3d at  738;  Valley
Hosp. Assn, 116 P.3d at 583.

     11     Lewiss original executive clemency application stated
that   she  was  being  treated  for  various  medical  problems,
including   arthritis,   lower  back  pain,   stomach   problems,
diverticulitis,  hiatal  hernia,  and  cataracts.   The  clemency
application  asserted  that  she was  providing  medical  records
demonstrating those conditions.  But Lewis did not  submit  those
or  any other medical records to DOC when she requested access to
an  outside  doctor and she did not submit them to  the  superior
court  as  part  of  her  action  for  declaratory  relief.   The
appellate  record  therefore contains no  medical  records.   She
therefore  failed to demonstrate in this case how DOCs denial  of
access  to  her  own  physician potentially interfered  with  her
pursuit of clemency.

     12    Noel v. Norris, 336 F.3d 648 (8th Cir. 2003).

     13    Young v. Hayes, 218 F.3d 850 (8th Cir. 2000).

     14    Noel, 336 F.3d at 649.

     15    Id.

     16    Id.

     17    Id.

     18    See id.

     19    Young, 218 F.3d at 851, 853.

     20    Id. at 853.

     21    See id.

     22     Hilbers v. Municipality of Anchorage, 611 P.2d 31, 36
(Alaska 1980).

     23     Kendall  v. State, Div. of Corr., 692 P.2d  953,  955
(Alaska 1984).

     24    See Hilbers, 611 P.2d at 38-39.

     25    Kendall, 692 P.2d at 955.

     26    Our holding does not require a threshold showing of  a
condition  warranting  executive clemency.   Such  a  requirement
would  impose  too  high a barrier to access to  private  medical
diagnosis and care.  But to trigger the protections of the Alaska
Constitution,  an  inmate  must, at  the  very  least,  point  to
evidence  indicating that she might have a condition  that  might
entitle her to clemency.

     27    Lewis argues for the first time in her reply brief that
DOCs  actions infringe on her First Amendment right  to  petition
the  government  for redress of grievances.  We do  not  consider
arguments raised for the first time in a reply brief.   Reust  v.
Alaska  Petroleum  Contractors, Inc., 127 P.3d 807,  819  (Alaska

     28    Lewis also argues that a prisoner could write directly
to  the governor and that the governor has the authority to grant
or  deny  the request, independently investigate the request,  or
ask  the board to investigate the request.  That may be true, but
the  governors  authority to deviate from the  procedure  he  has
established  is consistent with his inherent powers and  with  AS
33.20.080(a),  which states that the governor may refer  clemency
applications to the board.

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