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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Osborne v. State, Dept. of Corrections (9/5/2014) sp-6951

Osborne v. State, Dept. of Corrections (9/5/2014) sp-6951

         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  



WILLIAM G. OSBORNE,                                  )  

                                                     )        Supreme Court No. S-15218  

                  Appellant,                         )  

                                                     )        Superior Court No. 3AN-13-05783 CI  

         v.                                          )  

                                                     )        O P I N I O N  

STATE OF ALASKA,                                     )  

DEPARTMENT OF CORRECTIONS, )                                 No. 6951 - September 5, 2014  

                                                     )
  

                  Appellee.                          )
  

                                                     )
  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                             

                  Judicial District, Anchorage, Michael Spaan, Judge.  



                  Appearances: William G. Osborne, pro se, Palmer, Appellant.  

                  John K. Bodick, Assistant Attorney General, Anchorage, and  

                  Michael      C.   Geraghty,       Attorney      General,      Juneau,      for  

                                    

                  Appellee.  



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

                                                                                

                  Bolger, Justices.  



                  STOWERS, Justice.  



I.       INTRODUCTION  



                  William Osborne unsuccessfully challenged the Department of Correction's  



(DOC) calculation of his sentence through DOC's prisoner grievance process and then  

                                               



filed an administrative appeal in superior court.  The superior court dismissed for lack  



of subject matter jurisdiction.  We have previously held that the superior court does not  

                                                                                                        


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

have jurisdiction to consider such an appeal:  the superior court lacks statutory appellate          



jurisdiction to review DOC grievance decisions, and an exception allowing the superior  



              

court to review alleged constitutional violations does not apply because the prisoner  



                                                                                      

grievance process is not sufficiently adjudicative and does not produce a record capable  



               1  

of review.   We affirm the superior court's dismissal of Osborne's appeal.  



II.       FACTS AND PROCEEDINGS  



                    William Osborne filed a prisoner grievance with DOC alleging that DOC  

                                                         



incorrectly computed his sentence following a parole revocation.  He alleged that DOC  

                                      



failed  to  credit  time  he  spent  in  custody  pending  revocation  proceedings.    On  the  



recommendation of a DOC investigator, the acting superintendent of the prison denied  



the grievance.  Osborne appealed to the Director of Institutions, and a deputy director  



                                                                                                          

denied his appeal.  Osborne then filed a notice of administrative appeal in the superior  



court.  



                    DOC  moved  to  dismiss  the  administrative  appeal.    The  superior  court  



granted  DOC's  motion  "on  the  ground  that  challenges  to  [DOC's]  time  accounting  



                                                                                                              

computations  must  be  brought  as  applications  for  post-conviction  relief  pursuant  to  



                                                                                                            

Criminal Rule 35.1 and [DOC's] grievance decisions are not adjudicative in nature and  



cannot be reviewed by the superior court in an administrative appeal."  Osborne twice  



moved for reconsideration, and the superior court denied both motions.  In response to  



Osborne's   argument   that   review   was   required   because   he   had   exhausted   his  



administrative  remedies,  the  superior  court  concluded  in  its  second  order  denying  



                                                                                             

reconsideration that whether Osborne exhausted administrative remedies was irrelevant  



because the superior court lacked jurisdiction over Osborne's appeal.  



          1         Welton v. State, Dep't of Corr., 315 P.3d 1196, 1197-99 (Alaska 2014).  



                                                             -2-                                                          6951  


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                  Osborne filed a petition for hearing with this court. DOC moved to dismiss,  



arguing  that  a  petition  for  hearing  was  inappropriate  because  the  superior  court's  



                                                                                                  

decision was final.  We denied DOC's motion and converted Osborne's petition to an  

appeal, accepting the documents Osborne filed as his opening brief.2  



III.     STANDARD OF REVIEW  



                  Whether the superior court has subject matter jurisdiction to hear an appeal  

from an administrative decision is a question of law, which we review de novo.3  



IV.      DISCUSSION  



                  Osborne argues that the superior court has jurisdiction to hear his appeal  



                                                                         

because he is alleging a violation of his constitutional rights and the prisoner grievance  



process is an adjudicative proceeding.  Osborne further argues that the superior court  



erred  by  concluding  that  whether  he  exhausted  his  remedies  was  irrelevant  to  the  



question of jurisdiction.  DOC responds that DOC grievance decisions are not reviewable  



because the decisions do not result from adjudicative proceedings producing adequate  



records for review.  DOC is correct.  Because the superior court does not have statutory  



appellate  jurisdiction  over  DOC  grievance  decisions,  and  because  DOC  grievance  



proceedings are not sufficiently adjudicative and do not produce a record capable of  



                                                                                                                  4  

                                                                       

review, the superior court correctly concluded that it lacked subject matter jurisdiction. 



         2        Osborne v. State, Dep't of Corr., No. S-15218 (Alaska Supreme Court  



Order, Nov. 1, 2013).  



         3        See Welton, 315 P.3d at 1197 (quoting             Owen v. Matsumoto, 859 P.2d 1308,  



1309 (Alaska 1993));         Nw. Med. Imaging, Inc. v. State, Dep't of Revenue , 151 P.3d 434,  

438 (Alaska 2006) (citing Hydaburg Coop. Ass'n v. Hydaburg Fisheries , 925 P.2d 246,   

248 (Alaska 1996)).  



         4        Osborne also suggests that, rather than dismissing, the superior court should  



have granted a trial de novo or remanded to DOC to develop an adequate factual record.  

                                                                                                 (continued...)  



                                                        -3-                                                  6951
  


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

                                     

We note, however, that a prisoner may properly seek judicial review of a DOC sentence  



calculation through an application for post-conviction relief.  



          A.	        The  Superior  Court  Lacks  Jurisdiction  To  Hear  Administrative  

                    Appeals From Prisoner Grievance Decisions.  



                     Osborne  argues  that  the  superior  court  had  subject  matter  jurisdiction  



                                                                                             

because DOC prisoner grievance decisions are sufficiently adjudicative and are final  



agency  actions  subject  to  appellate  review  in  the  superior  court.    This  argument  is  



                                                        

incorrect.  We have clearly held that the superior court does not have jurisdiction to hear  



                                                                          5  

appeals from DOC prisoner grievance decisions.   



                                                                            

                    Under AS 22.10.020(d) the superior court has appellate jurisdiction "in all  



                                                    

matters appealed to it from a[n] . . . administrative agency when appeal is provided by  



law."    Because  no  statute  provides  for  appeal  from  DOC  administrative  decisions,  



"AS 22.10.020(d) does not confer subject matter jurisdiction on the superior court to  



                                                          6  

review appeals from DOC decisions."   We have recognized one exception to this rule:  



          4(...continued)  



But in the cases Osborne cites to support this proposition the superior court clearly had  

                                                                                                                   

jurisdiction to consider the appeal.  See State, Dep't of Revenue v. Merriouns, 894 P.2d  

                                          

623, 627 (Alaska 1995) (holding in Permanent Fund Dividend case that superior court  

                                                                                                               

erred by granting trial de novo where the department's factual record was not adequately  

developed,  and  directing  the  superior  court  to  remand  to  the  department  for  factual  

                                                                          

determinations); Aloha Lumber Corp. v. Univ. of Alaska , 994 P.2d 991, 998 (Alaska  

                                                                                          

 1999) (observing that appellant could have requested a trial de novo in the superior court  

in appeal from final administrative decision).  Here, because the superior court lacked  

jurisdiction, it had no power to remand or to grant a trial de novo.  See Alaska Appellate  

                       

Rule 609 ("[T]he superior court may make such orders as are necessary and proper to aid  

                                                                                            

its appellate jurisdiction." (Emphasis added.)).  

      



          5          Welton, 315 P.3d at 1197-99.  



          6  

                                                                             

                    Id. at 1197 (citing Brandon v. State, Dep't of Corr. , 938 P.2d 1029, 1031  

                                                                                                               (continued...)  



                                                                -4-	                                                       6951
  


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

an administrative appeal from a DOC determination is appropriate where there is (1) an  

                                                                               



alleged violation of a fundamental constitutional right in (2) an adjudicative proceeding  

                                                                                           

that (3) produces a record capable of appellate review.7  



                    In  Welton  v.  State  we  held  that  DOC  grievance  proceedings  are  not  



sufficiently adjudicative and affirmed the superior court's dismissal of Welton's appeal  

                                                                                                       

                                                        8   We cited our statement in Brandon v. State that:  

for lack of subject matter jurisdiction.  

                                                                  



                    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  

                                  [9] 

                    question.  



                                                                                                                       10  

We concluded that DOC grievance proceedings lack several essential elements.                                               They  

                              



do not:  (1) include a "hearing or similar proceeding at which the parties [may] 'present  

                                 



and rebut evidence and argument' "; (2) provide an opportunity to examine witnesses;  

                                     

or (3) "involve the 'formulation of issues of law and fact.' "11  



          6(...continued)  



(Alaska 1997)).  



          7         Brandon , 938 P.2d at 1032-33 (citing Owen, 859 P.2d at 1310).  



          8         Welton, 315 P.3d at 1199.   



          9         Id. at 1198 (quoting Brandon , 938 P.2d at 1032-33).  



          10        Id.  



          11        Id. (quoting Brandon , 938 P.2d at 1032-33).  



                                                               -5-                                                         6951
  


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

                    The      superior       court      does      not     have      appellate        jurisdiction        under  



                                                                                 

AS 22.10.020(d) to hear administrative appeals from DOC grievance decisions.  And  



because  prisoner  grievance  proceedings  are  not  sufficiently  adjudicative  and  do  not  



                                                                     

produce a record capable of appellate review, the exception allowing the superior court  



to review alleged violations of fundamental constitutional rights is inapplicable.  



                                                                 

          B.	       Relying On The Inadequate Record Produced In A Non-Adjudicative  

                                                                          

                    Grievance Process Would Create An Unacceptable Risk Of Violating  

                    A Prisoner's Constitutional Rights.  



                                                                                  

                    Osborne  argues  that  the  superior  court  necessarily  had  jurisdiction  to  



consider his appeal because he alleged a violation of his fundamental constitutional  



rights.  



                    As   discussed   above,   the   superior   court   has   jurisdiction   to   review  



                                                                                   

administrative actions not covered by AS 22.10.020(d) only when an alleged violation  



of a fundamental constitutional right has been reviewed in an adjudicative proceeding  



                                                                                12  

that  produces  a  record  capable  of  appellate  review.                            Prisoner  grievance  decisions  



usually do not result from adjudicative proceedings that produce a record capable of  



           13  

                       

                              

review.         We note that the policy basis for this requirement is not merely to promote  



                                                                                                                       

judicial  economy;  the  requirement  is  also  protective  of  the  prisoner's  right  to  due  



               

process. Challenging administrative decisions through the appropriate process is critical  



to  ensuring  that  an  adequate  record  is  developed  and  that  the  prisoner  is  given  the  



opportunity to be heard.  



                                                                             

                    We concluded in Owen v. Matsumoto that while a prisoner's challenge to  



                                                           

DOC's sentence calculations may raise constitutional issues, administrative appeal from  



an   informal   DOC   administrative   decision   is   not   the   appropriate   procedure   for  



          12        Brandon , 938 P.2d at 1031.  



          13        See supra section III.A.; Welton, 315 P.3d  at 1198.  



                                                              -6-                                                           6951  


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

considering those issues.14  In that case, a DOC inmate challenged DOC's calculation of   



his sentence by submitting a letter to the DOC Assistant Classification Officer.15                                            The  



                                                                                              

Officer  "responded  that  the  Time  Accounting  Task  Force  determined  that  none  of  



                                          16  

                                                                                                                         

Owen's claims had merit."                       Owen filed a notice of administrative appeal, and  the  



                                                                          17  

superior court dismissed for lack of jurisdiction.                            We affirmed, concluding that  



                                                              

                     [a]ny alleged violation of fundamental constitutional rights  

                    must be afforded judicial review.  However, Owen has not  

                    shown  that  review  by  administrative  appeal  is  the  proper  

                    avenue for judicial review of an alleged miscalculation of his  

                                                                                                        

                    sentence.  Owen has a right to have his sentence calculation  

                                                                

                                                                                                           [18] 

                    reviewed, but not by way of appeal to the superior court.  



                    Osborne argues that our decisions in Owen, Brandon , and Welton create a  



                                                                               

"catch 22" where prisoners are required to exhaust all administrative remedies, but that  



the DOC grievance system is inadequate because it produces only a paper record.  He  



                                            

suggests that this somehow impermissibly shifts the responsibility of making a record  



                                                                            

for appeal to the prisoner and asks "how can . . . prisoners bring their claims or issues  



                                                                                      

befor[e] the court when DOC provides no other way of producing a 'record' except on  



paper?"  



                                                                                                                            

                    Osborne simply misunderstands our precedent.  These cases do not in any  



                 

way deny a prisoner's right to have his constitutional claim heard.  To the contrary,  



reviewing  a  non-adjudicative  proceeding  that  produced  an  inadequate  record  would  



          14         859 P.2d 1308, 1310 (Alaska 1993).  



          15        Id. at 1308.  



          16        Id.  



          17        Id.  



          18        Id. at 1310.  



                                                                -7-                                                         6951
  


----------------------- Page 8-----------------------

                                                                                                    

create an unacceptable risk of violating a prisoner's fundamental constitutional rights.  



                      

As is evident from the record in this case, the grievance process does not require factual  



determinations or application of relevant law to the facts; there is no provision for a  



                                                            

hearing, and consequently there is no opportunity for a prisoner to present and rebut  



                                                                                                                       

evidence; and there is no rule of finality.   Most importantly, just as Welton was not  



                                                                    

precluded from bringing her claims against DOC as an original action in the superior  



         19  

court,       Osborne  is  not  precluded  from  challenging  his  sentence  calculation  in  the  

superior court through an application for post-conviction relief.20  



          C.	       Whether          Osborne          Exhausted          Administrative   Remedies                    Is   Not  

                    Relevant To The Question Of Jurisdiction.  



                    Osborne asserts that the superior court erred by concluding that whether he  



                                                                                                            

had exhausted his administrative remedies was irrelevant to whether it had jurisdiction  



     

to  consider  his  administrative  appeal.    He  argues  that  because  he  exhausted  his  



                                                                                                           

administrative remedies by filing a grievance and appealing the denial of his grievance  



through DOC's prisoner grievance process, he is  entitled to judicial review of what  



amounts to a final agency action.  



                    The superior court correctly concluded that exhaustion of remedies was  



                                                               

irrelevant to whether it had jurisdiction.  Regardless, whether Osborne was required to  



exhaust his administrative remedies, and whether he actually did, the superior court did  



                                                                 

not  have  jurisdiction  to  hear  his  appeal  because  AS  22.10.020(d)  does  not  confer  



                                                                          

jurisdiction to the superior court to hear appeals from DOC grievance proceedings and  



          19         Welton, 315 P.3d at 1199.   



          20        See Alaska Criminal Rule 35.1(a)(1) (providing that a person "may institute  



a proceeding for post-conviction relief . . . if the person claims . . . that [his] conviction  

                                                                                                 

or  [his]  sentence  was  in  violation  of  the  constitution  of  the  United  States  or  the  

                                                                                            

constitution or laws of Alaska").  



                                                               -8-	                                                        6951
  


----------------------- Page 9-----------------------

prisoner grievance proceedings are not sufficiently adjudicative and do not produce a  



record capable of review.  



                                                                               

         D.	       The Proper Avenue For Challenging A DOC Sentence Calculation Is  

                   An Application For Post-Conviction Relief.  



                                           

                   Osborne argues that the superior court erred by concluding that his claim  



may  only  be  brought  as  an  application  for  post-conviction  relief,  contending  that  



sentence       calculation       errors     are    outside      the    scope     of    the    statutes     governing  



                                               

post-conviction relief. But as we concluded in Owen, the proper vehicle for challenging  



                                                                                                          21  

DOC's  sentence  calculation  is  an  application  for  post-conviction  relief.                                Alaska  



                                                     

Criminal Rule 35.1 provides that "[a] person who has been convicted of or sentenced for  



a    crime       may       institute      a     proceeding         for     post-conviction            relief     under  



AS 12.72.010-12.72.040 if the person claims[] . . . that the conviction or the sentence  



                                  

was in violation of the constitution of the United States or the constitution or laws of  



Alaska."    And  the  limitations  on  applications  for  post-conviction  relief  set  out  in  



                                                                                                 

AS 12.72.020(a) do not bar claims alleging sentence miscalculation.  The superior court  



                                                                                                           

did not err in concluding that Osborne's sentence calculation claim should be brought  



as an original application for post-conviction relief.  



V.	      CONCLUSION  



                   For  the  reasons  discussed,  we  AFFIRM  the  superior  court's  order  



dismissing Osborne's administrative appeal.  



         21        Owen,  859 P.2d at   1309 (holding that  the pr               oper pr   ocedure f   or review of  



a    sentence       miscalculation         claim      is   to    request      post-conviction          relief    under  

Criminal Rule 35.1).  



                                                           -9-                                                       6951  

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