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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Welton v. State, Dept. of Corrections (1/3/2014) sp-6861

Welton v. State, Dept. of Corrections (1/3/2014) sp-6861

         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,  

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SUZETTE WELTON,                                      )  

                                                     )  Supreme Court Nos. S-14822/14827/14924  

                          Appellant,                 )  

                                                     )      Superior Court Nos. 3AN-12-06735 CI,  

         v.	                                         )        3AN-12-04547 CI, and 3AN-12-06727 CI  


                                                     )      O P I N I O N  

STATE OF ALASKA,                                     )  


                                                     )       No. 6861 - January 3, 2014  

                          Appellee.                  )  


                  Appeal in File No. S-14822 from the Superior Court of the  


                  State  of  Alaska,  Third  Judicial  District,  Anchorage,  Mark  

                  Rindner,  Judge.    Appeal  in  File  No.  S-14827  from  the  

                  Superior Court of the State of Alaska, Third Judicial District,  

                  Eric A. Aarseth, Judge.  Appeal in File No. S-14924 from the  


                  Superior Court of the State of Alaska, Third Judicial District,  

                  Anchorage, Catherine M. Easter, Judge.  

                  Appearances:          Suzette      Welton,      pro   se,   Eagle     River,  

                  Appellant.  Matthias Cicotte, Assistant Attorney General, and  

                  Michael      C.   Geraghty,       Attorney      General,      Juneau,      for  


                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  BOLGER, Justice.  

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



                   A Hiland Mountain Correctional Center (Hiland) inmate, Doctor Suzette  


Welton,  has  filed  three  appeals  to  this  court  arguing  that  the  dismissal  of  her  


administrative appeals for lack of subject matter jurisdiction was error. In all three cases,  

Welton  appealed  to  the  superior  court  from  decisions  in  Department  of  Corrections  

(DOC)  grievance  proceedings.    In  order  to  qualify  for  the  administrative  appeal  

procedure, Welton had to show that (1) she was alleging a violation of her constitutional  


rights, and that (2) the proceeding was adjudicative in nature and (3) produced a record  

                                        1  We agree with the superior courts that the underlying DOC  


capable of appellate review. 

grievance  proceedings  are  not  adjudicative  proceedings,  and  they  do  not  produce  a  


record that is capable of appellate review.  


          A.        Case 14827  

                   Welton legally changed her name in December 2008 from "Suzette Mishell  


Welton" to "Doctor Suzette Mishell Welton" and subsequently "requested that the DOC  


change[] all her documentation and communication to reflect the addition of Doctor."  


In November 2011, Welton filed a Prisoner Grievance regarding the name correction  


issue, to which it appears she received no response.  She next filed a grievance appeal,  

which was denied.  Welton appealed to the superior court in December 2011, which  


dismissed her case for lack of subject matter jurisdiction on the grounds that the DOC  

grievance procedure was not sufficiently adjudicatory and the record produced by that  

procedure was not susceptible of review in an administrative appeal.  



                   Brandon  v.  State,  Dep't  of  Corr.,  938  P.2d  1029,  1032  (Alaska  1997)  

(citation omitted).  

                                                             -2-                                                          6861  

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

         B.        Case 14924  


                   Welton filed a Prisoner Grievance in September 2011, because she was not  


allowed to use a CD-ROM on DOC computers for purposes of a correspondence course.  

When the grievance was unsuccessful, Welton filed a grievance appeal.  In February  


2012, Hiland denied the appeal.  Welton appealed to the superior court in March 2012.  


The  superior  court  dismissed  Welton's  case  for  lack  of  subject  matter  jurisdiction,  

finding that the DOC "grievance policy is not sufficiently adjudicative." 

          C.       Case 14822  

                   Welton bought communion bread from an external vendor in October 2011.  

She filed a grievance with Hiland in December 2011, alleging that prison officials were  

not  allowing  her  access  to  it.    Hiland  officials  denied  her  grievance,  as  well  as  her  

grievance appeal.  


                   In April 2012, Welton filed an administrative appeal with the superior court  


seeking review of the communion bread grievance.  The trial court dismissed her appeal  


for lack of subject matter jurisdiction, finding that DOC's policy governing grievances  

"is not sufficiently adjudicative," thus failing to meet the Brandon test.  



                   "This appeal requires an interpretation of AS 22.10.020(d), which defines  

the superior court's appellate jurisdiction.  On questions of statutory interpretation this  


court exercises its independent judgment."   


                   Superior court appellate jurisdiction is governed by AS 22.10.020(d), which  

states that "[t]he superior court has jurisdiction in all matters appealed to it from a[n] . . .  


administrative agency when appeal is provided by law . . . ."  There is no statutory  

         2         Owen v. Matsumoto, 859 P.2d 1308, 1309 (Alaska 1993) (citation omitted).  

                                                           -3-                                                        6861  

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provision for an appeal from a DOC administrative decision, so AS 22.10.020(d) does  


not confer subject matter jurisdiction on the superior court to review appeals from DOC  



decisions.   However, an exception to that rule has been created by this court's decisions  

                                 4                                                     5                                    6  

in McGinnis v. Stevens ,  Department of Corrections v. Kraus ,  and Owen v. Matsumoto.  


                   Under the exception, an Alaska inmate has a right to judicial review of  



DOC administrative decisions "when issues of constitutional magnitude are raised." 

Brandon , we stated the test for when the exception is applicable:  "an administrative  

appeal [from a DOC determination] is appropriate where there is an alleged violation of  


fundamental  constitutional  rights  in  an  adjudicative  proceeding  producing  a  record  



capable of review."   Here, as noted above, the three superior courts dismissed each of  

Welton's  cases  for  lack  of  subject  matter  jurisdiction.    All  three  courts  applied  the  

Brandon three-part test and found either or both of the latter two prongs not satisfied.  

                   We have previously declined direct appellate review of DOC grievance  


proceedings in cases that did not involve issues of constitutional magnitude.     In this  


case, however, we assume without deciding that all three of Welton's appeals allege  

violations of her fundamental constitutional rights and that the first Brandon prong is  

          3        Brandon , 938 P.2d at 1031.

          4        543 P.2d 1221 (Alaska 1975).

          5        759 P.2d 539 (Alaska 1988).

          6         859 P.2d 1308 (Alaska 1993).

          7        Brandon , 938 P.2d at 1031 (citations and internal quotation marks omitted).  

          8        Id. at 1032 (citation omitted).  

          9        See Hays v. State, 830 P.2d 783, 785 (Alaska 1992);                           Hertz v. Carothers ,  

784 P.2d 659, 660 (Alaska 1990).  

                                                             -4-                                                      6861

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

satisfied.  We must now decide whether the DOC grievance procedure is an adjudicatory  

proceeding producing a record sufficient for judicial review.  

                                                                                                                10 does not implement an  

                        The DOC argues that its prisoner grievance policy                                                            

adjudicative proceeding producing a record capable of review.  In Brandon , we stated:  


                        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  determination  of  the  matter  in  



The DOC correctly notes that, here, there was no hearing or similar proceeding at which         


the parties could "present and rebut evidence and argument."                                                        Neither party had the  

opportunity  to  examine  witnesses,  and  the  grievance  process  did  not  involve  the  


"formulation of issues of law and fact."                                    There was no burden of proof to be met nor  


legal elements to be proven.  The grievance procedures provide for nothing more than  

a paper record of Hiland's "efforts to resolve issues at the lowest possible level."14  

            10          See  State of Alaska, Dep't of Corrections, Policies and Procedures 808.03       

(2006), available at  

            11          938 P.2d at 1032-33 (quoting Johnson v. Alaska State Dep't of Fish &  


Game, 836 P.2d 896, 908 n.17 (Alaska 1991)).  

            12          Id.  

            13          Id.

         Policies and Procedures 808.03 at 1.  

                                                                           -5-                                                                     6861

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

                    Indeed, this court has already held that where, as here, there is only a paper  


record of the case, the Kraus/McGinnis/Owen exception does not apply.                                          In  Owen, a  


prisoner  disputed  his  sentence  calculation  in  a  letter,  and  when  he  received  an  

                                                                                      16  We affirmed the superior  


unsatisfactory response, he appealed to the superior court.  

court's decision to dismiss for lack of subject matter jurisdiction, concluding that the  



latter two Brandon prongs were not satisfied.                         The DOC grievance proceedings in this  


case are similar to the DOC sentence calculations we considered in Owen; the decision  

process produces only a paper record.  

                    In  McGinnis  v.  Stevens ,  we  stressed  that  appellate  review  of  a  DOC  


disciplinary proceeding was appropriate because there was a tape-recorded hearing to  


review.        We observed that "[a] verbatim record of the proceedings will furnish a more  


                                                                                                                   Later, in  

complete and accurate source of information than" a written record would. 


Kraus , we reasoned that such "[a] review on the record, as distinct from the de novo  


reception  of  evidence,  is  a  characteristic  of  appeals."                            Thus  the  existence  of  a  

comprehensive, reliable record facilitates an administrative appeal.  

                    Here, the limited paper record produced by the DOC's informal grievance  


process is inadequate for appellate review, and the grievance process itself lacks several  

          15        See  Owen v. Matsumoto, 859 P.2d 1308, 1308-10 (Alaska 1993).

          16        Id. at 1308.

          17        Id. at 1310.



                    543 P.2d 1221, 1236 (Alaska 1975); see also Dep't of Corr. v. Kraus , 759  

P.2d 539, 540 (Alaska 1988).  

          19        McGinnis , 543 P.2d at 1236.  

          20        759 P.2d at 540 (citations omitted).  

                                                              -6-                                                       6861

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


important hallmarks of an adjudication.  Thus, an administrative appeal will provide  

inadequate process for Welton's claims.  


                    We do not intend this ruling to foreclose Welton from pursuing her claims.  


We assume that she may file an independent civil action requesting the same relief she  


requests in these cases.  At oral argument, counsel for the State represented that the State  


will  not  assert  that  such  an  action  is  barred  by  Welton's  failure  to  exhaust  her  


administrative remedies.  In a civil action, both parties will have the right to a full and  


fair hearing on these claims.  Our ruling simply recognizes that the present record is  

inadequate to support meaningful appellate review.  

V.        CONCLUSION  


                    For  the  foregoing  reasons,  we  AFFIRM  the  superior  court  decisions  

dismissing Welton's administrative appeals from DOC grievance proceedings.  

                                                              -7-                                                        6861

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