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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,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                   

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



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,                                     )  

DEPARTMENT OF CORRECTIONS, )  

                                                     )       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  

                  Appellee.  



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

                                                        

                  Bolger, Justices.  



                  BOLGER, Justice.  


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

I.        INTRODUCTION
  



                                                                                             

                   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.  



II.       FACTS AND PROCEEDINGS  



          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.  



          1  

                                                                                                 

                   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.  



III.      STANDARD OF REVIEW  



                                                                           

                   "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  



                                                            2  

court exercises its independent judgment."   



IV.      DISCUSSION  



                   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  


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

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  



              3 

                                                                         

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  



                                                                                                                        7 

                                                                                                                          In  

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  



                            8  

                                                                              

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  



                                                                                                                9  

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  

                                         [11]  

                        question.               



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



                                                                                                                12  

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  



                                                                        13  

"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 http://www.correct.state.ak.us/corrections/pnp/pdf/808.03.pdf.  



            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.
  



            14
         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  



                                                                                                           15  

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  

                                                                                                                     



                                                                  17  

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  



           18  

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



                                                                                                               19  

                                                                                                                   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  



                                                                                    20  

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.
  



          18  

                                                                                

                    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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