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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gregory Smith, Rowdy James, Sharlynn Morgan, Arthur Smith, Larry Tunley, and Brian Vaughan v. Municipality of Anchorage (5/9/2025) sp-7767
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@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
GREGORY SMITH, )
) Supreme Court No. S-18710
Appellant, )
) Superior Court No. 3AN-22-06805 CI
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
) No. 7767 - May 9, 2025
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Herman G. Walker, Jr., Judge.
Appearances: Gregory Smith, pro se, Anchorage, Appellant.
Jessica B. Willoughby, Assistant Municipal Attorney, and
Anne R. Helzer, Municipal Attorney, Anchorage, for
Appellee. Melody Vidmar and Eric Glatt, Anchorage, for
Amicus Curiae ACLU Alaska Foundation.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
MAASSEN, Chief Justice.
INTRODUCTION
Municipal ordinances outline a procedure for "campsite abatement" - the
removal of unauthorized campsites from public property following posted notice of the
decision that they are subject to abatement. Part of that procedure is an appeal to the
superior court.
----------------------- Page 2-----------------------
The superior court in this case determined that its appellate jurisdiction
was limited by ordinance to the issue of whether the posted notice of abatement was
legally sufficient and did not permit it to decide whether the abatement itself was proper.
We conclude that the superior court's jurisdiction is not so limited. We therefore
reverse its decision and remand for further consideration of the constitutional challenges
to abatement raised on appeal. We also direct the court on remand to determine whether
the administrative record is sufficient for purposes of meaningful appellate review and,
if it is not, to take the necessary steps to ensure that it has such a record.
FACTS AND PROCEEDINGS
A. Facts
The Anchorage Municipal Code (AMC) identifies "prohibited campsites"
as public nuisances and provides a detailed set of procedures the Municipality can use
to address them.1 In all cases, notice of an impending abatement must be posted before
the physical removal of people and property may begin.2 There are four different notice
periods: 24 hours for wildfire danger areas,3 72 hours for campsites near protected land
uses like trails and playgrounds,4 ten days for "zone abatements" (when the
Municipality simultaneously abates all campsites within a contiguous area),5 and 15
days for most other campsites.6 The abatement procedure specifies that an appeal to
the superior court may be taken "within 30 days from the date the notice of campsite
7
abatement is posted, in accordance with the Alaska court rules."
1 AMC 15.20.020(B)(15) (2023).
2 AMC 15.20.020(B)(15)(a).
3 AMC 15.20.020(B)(15)(b)(i).
4 AMC 15.20.020(B)(15)(b)(ii).
5 AMC 15.20.020(B)(15)(b)(v).
6 AMC 15.20.020(B)(15)(b)(iv).
7 AMC 15.20.020(B)(15)(e) (2019).
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In June 2022 the Municipality posted a "Notice of Zone Campsite
Abatement/Clean Up" in Davis Park.8 The notice advised that "[t]his is not a legal area
for storage or shelter" and that "[a]ny personal property in or around this zone at the
end of 10 days shall be removed and disposed of as waste." It gave a telephone number
for "outreach and housing support," explained the Municipality's policies for storage
of personal property removed from the site, and described available appeal rights. Ten
days after the notice date, six individuals filed an appeal of the abatement in superior
court.
B. Proceedings
In their appeal, the individuals argued that the abatement violated due
process because it allowed the Municipality to seize personal property without an
opportunity for a hearing (or, in fact, "any proceedings of any kind[,] . . . as shown by
9
the lack of record from the municipality"). They also cited the "danger doctrine,"
explaining that because the Municipality was unable to provide adequate shelter for the
homeless, taking away their "bed[d]ing, cooking implements, and protection against the
elements" through campsite abatement violated the Eighth Amendment's prohibition
on cruel and unusual punishment.10 The Municipality responded that the Municipal
8 In its superior court brief the Municipality identified Davis Park as
"located on Joint Base Elmendorf-Richardson property and . . . leased to the
Municipality for parks and recreation purposes."
9 Under the "state-created danger" doctrine, "state officials could be held
liable where they affirmatively and with deliberate indifference placed an individual in
danger she would not otherwise have faced." Kennedy v. City of Ridgefield , 439 F.3d
1055, 1066 (9th Cir. 2006).
10 See U.S. Const. amend. VIII ("Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted."). In Martin v.
City of Boise, 920 F.3d 584, 616 (9th Cir. 2019), the Ninth Circuit held "that the Eighth
Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying
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Code provides only for appeal of the notice of abatement, not of the abatement decision
itself. According to the Municipality, this meant that the only action subject to
challenge was the posted notice and whether it complied with the Code's notice
requirements;11 therefore, because the appellants agreed that the notice did comply with
the Code, there was nothing left to their claims that the superior court had jurisdiction
to decide on appeal.
The superior court agreed with the Municipality's position. It decided that
the Code limited the court's appellate jurisdiction to the notice's legal sufficiency, and
because the appellants did not challenge that, their case had to be dismissed. The court
further observed, however, that the appellants' claims were "not wholly without merit"
and that it agreed with the parties' stipulation that "a civil suit is an available recourse
to address [the individuals'] claims."
One of the individual appellants, Gregory Smith, appeals the dismissal.
The American Civil Liberties Union of Alaska filed a brief as an amicus curiae and
argued the case on Smith's behalf.
outside on public property for homeless individuals who cannot obtain shelter." The
United States Supreme Court abrogated this holding in City of Grants Pass v. Johnson,
144 S. Ct. 2202, 2216-17, 2220 (2024), holding that a state's decisions about what
conduct to criminalize did not implicate the Eighth Amendment and rejecting the
argument that the public-camping ordinances at issue criminalized not conduct but the
status of homelessness.
11 The Code prescribes where the campsite abatement notice is to be posted
("on or near each tent, hut, lean-to, or other shelter designated for removal") and what
information it must contain: the campsite's location, the Code provision authorizing
the abatement, a description of appeal rights, and information about the storage and
reclaiming of personal property removed from the site. AMC 15.20.020(B)(15)(a)(i)-
(iv), (vi) (2023). The Code also requires that notice "be given orally to any persons in
or upon the prohibited campsite or who identifies oneself as an occupant of the
campsite." AMC 15.20.020(B)(15)(a)(v) (2023).
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STANDARD OF REVIEW
The courts' subject matter jurisdiction to hear an administrative appeal
presents a question of law; therefore we review the superior court's dismissal order de
12
novo.
DISCUSSION
A. Superior Courts Have Jurisdiction Over Substantive Appeals Of
Campsite Abatement Decisions.
Pursuant to Alaska Statute 22.10.020(d), the superior court has subject
matter jurisdiction "in all matters appealed to it from a subordinate court, or
administrative agency when appeal is provided by law." We have long held that appeals
from municipal agencies fall within this statutory grant of jurisdiction.13 We have also
held that municipalities' administrative decisions are presumptively subject to judicial
review.14 We do not need to address here whether and to what extent a municipality
could, by ordinance, cabin this presumptive right of judicial appeal, because we
conclude that the Municipal Code provisions at issue do not purport to limit it.
12 Osborne v. State, Dep 't of Corr., 332 P.3d 1286, 1287 (Alaska 2014).
13 See Keiner v. City of Anchorage, 378 P.2d 406, 410 (Alaska 1963)
(rejecting argument that statutory grant of jurisdiction "refers only to agencies which
are created by the state legislature" and concluding "that the term 'administrative
agency' should be construed broadly so as to include a municipal council, acting as a
board of adjustment, since it is in fact performing administrative functions").
14 Bethel Util. Corp. v. City of Bethel, 780 P.2d 1018, 1022 (Alaska 1989)
("Unless the legislature provides otherwise, administrative decisions are presumed to
be judicially reviewable. Here, the Bethel City Council has not precluded judicial
review. Therefore, the law does provide for appeals from the city council's
administrative decisions." (citation omitted)); see also AS 29.40.060(a) (providing that
in area of land use regulation, "[t]he assembly shall provide by ordinance for an appeal
by a municipal officer or person aggrieved from a decision of a hearing officer, board
of adjustment, or other body to the superior court").
-5- 7767
----------------------- Page 6-----------------------
1. The plain language of AMC 15.20.020, and the language of the
posted notice itself, support the right to appeal a campsite
abatement decision.
AMC 15.20.020(B) defines prohibited public nuisances, including
unlawful campsites.15 The ordinance creates the appeal process for campsite abatement
and explains it in some detail:
Appeal procedure. A posted notice of campsite abatement is
a final administrative decision and appeals shall be to the
superior court within 30 days from the date the notice of
campsite abatement is posted, in accordance with the Alaska
court rules. If the owner or person in possession of personal
property at the time the notice is posted responds in writing
to the municipality prior to expiration of a ten-day notice of
the owner 's intention to appeal the campsite abatement to the
superior court, the municipality shall not remove the
personal property until at least 30 days have passed from the
date the notice was first posted, except as provided in
[16]
subparagraph B.15.f.ii.
The ordinance goes on to provide for a stay of abatement during the pendency of an
appeal, though it anomalously allows the Municipality to "remove personal property
17
and store it" during that time.
As noted above, the superior court decided this case on the basis of subject
matter jurisdiction, concluding that "subsections (e) and (f) of AMC 15.20.020(B)(15)
'clearly limit superior court jurisdiction to only the "posted notice" actions of municipal
agents' and therefore [the superior court] lacks subject matter jurisdiction on all other
procedural or substantive respects." The court followed the analysis of another superior
court in an earlier case, Vaughan v. Municipality of Anchorage, which began by quoting
(B)(15)(e): "A posted notice of campsite abatement is a final administrative decision
15 AMC 15.20.020(B)(15).
16 AMC 15.20.020(B)(15)(e) (2019).
17 AMC 15.20.020(B)(15)(f)(i)-(ii) (2019).
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and appeals shall be made to the superior court within 30 days from the date the notice
of campsite abatement is posted, in accordance with the Alaska court rules."18 The
Vaughan court then noted the ordinance's further provisions allowing the Municipality
to seize and store personal property during the pendency of any appeal and providing
that "the appeals process under these subsections does not prevent eviction from
municipal lands or provide an ability to appeal or stay the eviction part of campsite
abatements." Because the authorized appeal process thus could not have any
substantive effect on the abatement, the court reasoned that it lacked subject matter
jurisdiction to hear any claims other than those regarding the "posted notice" itself -
in other words, "actions pertaining to the eviction from Davis Park, and cleanup,
seizure, storage, and destruction of personal property during the abatement proceedings
. . . are not within the scope of [the superior] court's subject matter jurisdiction."
We are not persuaded that the ordinance's characterization of the notice
as the "final administrative decision"19 supports a conclusion that only the legal
sufficiency of the notice may be appealed. The posted notice of a decision may or may
not be the decision itself, depending on its substantive content and what preceded it.
But the phrase "final administrative decision" undoubtedly represents a deliberate
choice of words in the context of describing an appeals process, because judicial appeals
20
from administrative decisions not explicitly identified as final are premature.
18 No . 3AN-21-07931 CI (Alaska Super., June 16, 2022) (emphasis in
original) (alteration omitted).
19 AMC 15.20.020(B)(15)(e).
20 Id. ; Alaska R. App. P. 602(a)(2) ("The 30-day period for taking an appeal
does not begin to run until the agency has issued a decision that clearly states that it is
a final decision and that the claimant has thirty days to appeal."); Mat-Su Valley Med.
Ctr., LLC v. Advanced Pain Ctrs. of Alaska, Inc. , 218 P.3d 698, 706 (Alaska 2009)
(noting that if agency fails to include this information when communicating its decision,
superior court must relax 30-day appeal deadline).
-7- 7767
----------------------- Page 8-----------------------
Reasonably read, the ordinance's statement that a posted notice "is a final
administrative decision" is meant not to restrict the subject matter of appeals to the
notice itself, but rather to simply inform the reader that once the notice is posted, the
30-day period for appeal has begun to run.
The Code's language is reflected in the notice posted at Davis Park, which
states that it "serves as a final decision of the Municipality of Anchorage that this posted
zone/campsite is subject to abatement" and that "[y]ou may appeal this decision." And
while the notice may not contain the full extent of the decision-making that preceded it,
the substance of the decision is reflected in the notice's language. For example, the
notice states that "[t]his is not a legal area for storage or shelter" and "this posted
zone/campsite is subject to abatement." In order for a campsite to be "subject to
abatement," it must be "an area where one or more persons are camping on public land
in violation of section 8.45.010 [defining trespass under the penal code], chapter 25.70
21
[listing prohibited conduct on public lands], or any other provision of this Code."
Determining the accuracy of the Municipality's legal conclusions requires interpreting
the Code and applying that interpretation to the facts, tasks the courts are well equipped
22
to handle.
We do recognize the ordinance's procedural anomaly. Subsection
(B)(15)(f)(i) states that "[a]batement of the campsite area is stayed until the appeal is
withdrawn, settled, or a decision is issued and any subsequent appeal rights expire," but
subsection (B)(15)(f)(ii) adds the proviso that "the municipality may remove personal
21 AMC 15.20.020(B)(15) (2023).
22 See Haight v. City & Borough of Juneau, 448 P.3d 254, 258 (Alaska 2019)
(noting that "reviewing the government's adherence to standards falls within the
traditional competence of the courts"); O'Callaghan v. Rue, 996 P.2d 88, 94 (Alaska
2000) (noting that "interpretation of statutory language" is "a function uniquely within
the competence of the courts").
-8- 7767
----------------------- Page 9-----------------------
property and store it until either the appeal is withdrawn, settled, or a decision is issued
and any subsequent appeal rights expire."23 The ordinance thus appears to provide that
although abatement is stayed pending a timely appeal, the removal and storage of
personal property may continue. But what more is there to abatement besides the
24
removal of personal property from a prohibited campsite?
Even if we were to assume, however, that the ordinance does not allow
for an effective stay of the abatement, we would still conclude that it does not restrict
the right to appeal from the abatement decision itself. Whether or not abatement is
stayed, a successful appeal could presumably restore to the individual the right to camp
in the area the Municipality claimed was subject to abatement. In short, we see nothing
in the ordinance or in the language of the posted notice that purports to restrict the right
to appeal to the notice's legal sufficiency.
2. The legislative history of AMC 15.20.020 supports the right to
appeal a campsite abatement decision.
The legislative history of AMC 15.20.020(B)'s current text supports our
conclusion that the right to appeal to the superior court is intended to attach to the
decision to abate a campsite and not just the legal sufficiency of the notice of that
decision.
AMC 15.20.020(B)(15), making an "illegal" campsite25 a public nuisance,
was added to the code in 2009 and amended in 2010 to provide a full description of the
23 AMC 15.20.020(B)(15)(f)(i), (ii) (2019).
24 The ordinance lists a variety of "personal property removed from a
prohibited campsite" that, "when in fair and usable condition," "shall be deemed
valuable and eligible for storage," including such basic elements of camp life as "[t]ents
and similar self-contained shelter[s]," "[s]leeping bags," "[t]arps," "[g]enerators," and
"[c]ooking equipment." AMC 15.20.020(B)(15)(c)(iii).
25 The term used in the current code is "prohibited campsite." AMC
15.20.020(B)(15).
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"appeal procedure."26 The amended appeal procedure was much more comprehensive
at the administrative level than it is now, including a "quasijudicial" hearing before an
administrative hearing officer before any judicial appeal could be taken. The ordinance
described the appeal procedure as follows:
A posted notice of campsite abatement is final if a campsite
occupant does not file a notice of appeal under section
3.60.035 with the municipal administrative hearing office by
the date indicated on the notice. To be filed with the
administrative hearing office, the notice of appeal must be
received prior to the time and date on the posted notice after
which abatement may commence. An appeal is filed with
the administrative hearing office upon receipt of a written
notice mailed or transmitted by facsimile, or upon personal
appearance of an appellant camper with a written or verbal
request to appeal. Upon receiving a notice of appeal, the
administrative hearing office shall schedule a hearing as
soon as practicable and no later than five (5) business days
following receipt of the appeal. The notice of the
administrative hearing shall be served on the appellant
personally, by mail or facsimile if such information for that
purpose is provided by the appellant, or posted at the same
place or area where the notice of abatement being appealed
was posted. The administrative hearing shall not proceed
unless there is proof of service or posting at least two (2)
business days prior to the hearing. Proof of service or
posting may be submitted by affidavit, and may be
accomplished by any municipal employee or a person
qualified for service of process under the Alaska court rules.
The issues at the hearing are whether (i) the campsite is
illegal and (ii) all the property found thereon may be
disposed of as waste forthwith. If the administrative hearing
officer affirms the notice of campsite abatement, the
municipality may proceed to abate the campsite without
delay and all personal property found thereon disposed of as
waste. Except as otherwise provided in this subsection, the
26 Anchorage, Ordinance 2009-83(S) (July 7, 2009); Anchorage, Ordinance
2010-43(S) (June 22, 2010).
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appeal hearing shall be conducted as a quasijudicial
[27]
proceeding under chapter 3.60.
Most notably for purposes of the issue before us now, the ordinance's description of the
appeal process defined the two "issues [to be determined] at the [administrative]
hearing" as: "whether (i) the campsite is illegal and (ii) all the property found thereon
28
may be disposed of as waste forthwith."
This ordinance - amended again in September 2010, with the above-
quoted portion left intact29 - was challenged in 2010 and struck down by a superior
court in Engle v. Municipality of Anchorage .30 Addressing the appeals process, the
Engle court ruled that because final decisions by the administrative hearing officer on
abatements were stayed for only two days before abatement could continue and "waste"
property could be destroyed, potential appellants could not effectively protect their
property through either administrative appeal or the court system, meaning that the
31
appeal process as then outlined did not afford due process of law.
The Anchorage Assembly responded by passing an ordinance that, among
other things, changed the appeals process to its current form and provided for longer-
term storage of personal property pending appeal "until either the appeal is withdrawn,
settled, or a decision is issued and any subsequent appeal rights expire."32 The
27 Anchorage, Ordinance 2010-43(S) (June 22, 2010).
28 Id.
29 Anchorage, Ordinance 2010-63 (Sept. 14, 2010).
30 No. 3AN-10-7047 CI (Alaska Super., Jan. 4, 2011).
31 Id. at 21-23.
32 Anchorage, Ordinance 2011-52 (Apr. 26, 2011); see Anchorage Assembly
Memorandum, 226-2011 (Apr. 12, 2011).
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ordinance entirely eliminated the intermediate step of appeal to the administrative
33
hearing office, replacing it with a direct appeal to the superior court.
Importantly for this case, deleting the ordinance's description of the
administrative hearing process included deleting the definition of the issues to be
determined at the administrative hearing.34 This raises the question whether the
Assembly actually intended to narrow the issues that could be appealed from what they
had been expressly - "whether (i) the campsite is illegal and (ii) all the property found
thereon may be disposed of as waste forthwith"35 - to something much narrower: the
legal sufficiency of the posted notice.
We see no reason to believe that this was the Assembly's intent. The
Engle decision, to which the Assembly was reacting,36 was primarily concerned with
procedural due process: ensuring that occupants of abated campsites could exercise
their appeal rights without being deprived of their personal property before the appeal
was resolved.37 The Assembly's remedy was to cut out the intermediate step of an
administrative hearing and, in essence, let the courts handle it. This meant it was no
longer necessary to instruct the administrative hearing office as to what issues were
within its authority to decide on abatement appeals. But we cannot read the legislative
silence as an affirmative decision that the courts should not be considering at least the
same core questions as had formerly been left to the hearing officer.
33 Anchorage, Ordinance 2011-52 (Apr. 26, 2011).
34 Id.
35 Anchorage, Ordinance 2010-43(S) (June 22, 2010).
36 Anchorage Assembly Memorandum, 226-2011 (Apr. 12, 2011)
(amending AMC 15.20.020(B)(15) and noting that the amendments were designed to
resolve the due process constitutional issues highlighted by the superior court's decision
in Engle v. Mun. of Anchorage).
37 Engle v. Mun. of Anchorage, No. 3AN-10-7047 CI at 21-23 (Alaska
Super., Jan. 4, 2011).
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We conclude, therefore, that the intended scope of review under the
current ordinance is at least as broad as it was before Engle, including "whether (i) the
campsite is illegal and (ii) all the property found thereon may be disposed of as waste
forthwith."38 The question of the campsite's legality encompasses the constitutional
due process issues Smith raises; although they would be outside the jurisdiction of the
39
administrative hearing office, they fall within the special expertise of the courts.
Smith's challenges to the campsite abatement were proper subjects for judicial review
on appeal.
B. If The Superior Court Determines That The Record Is Insufficient
For Appellate Review, It May Order The Municipality To
Supplement The Record, Remand To The Municipality For
Development Of A Sufficient Record, Or Order A Trial De Novo.
Because the Municipality considered appellate review to be limited to the
legal sufficiency of the posted notice - i.e., whether the notice complied with the
ordinance's requirements for placement and content - it prepared a two-page
administrative record for purposes of this appeal,40 consisting only of two copies of the
38 Anchorage, Ordinance 2010-43(S) (June 22, 2010).
39 See Griswold v. City of Homer, 556 P.3d 252, 272 (Alaska 2024) ("Certain
pure issues of law, like constitutional issues and certain questions of statutory validity,
are "within the special expertise" of the court rather than the agency." (internal
quotation marks omitted) (quoting RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056, 1061
(Alaska 2015))); Alaska Pub. Int. Rsch. Grp. v. State , 167 P.3d 27, 36 (Alaska 2007)
("Administrative agencies do not have jurisdiction to decide issues of constitutional
law.").
40 See Alaska R. App. P. 604(b)(1)(A) (providing that in appeals from
administrative agencies, "[t]he record on appeal consists of the original papers and
exhibits filed with the administrative agency, and a typed transcript of the record of
proceedings before the agency"). Preparing and filing the record is the responsibility
of the administrative agency, though the reasonable costs of preparation are ordinarily
borne by the appellant "[i]n the absence of an agreement between the parties or an order
of the court to the contrary." Alaska R. App. P. 604(b)(1)(B)(iii), (iv).
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----------------------- Page 14-----------------------
posted notice, one dated and one not. There are no memoranda, emails, notes, or other
documentation of the thought process that presumably went into reaching the notice's
conclusion that Davis Park was "not a legal area for storage or shelter" and campsites
there should be abated. The Municipality contends that the sparsity of this record,
which it prepared, is enough of a hindrance to appellate review that it necessarily limits
the superior court's jurisdiction.
The Municipality relies in part on a series of cases involving prisoners'
appeals, in which we have noted our limited subject matter jurisdiction in the specific
area of Department of Corrections (DOC) disciplinary decisions.41 As observed above,
AS 22.10.020(d) gives the superior court jurisdiction over agency appeals "when appeal
is provided by law"; because "[t]here is no statutory provision for an appeal from a
DOC administrative decision," the general jurisdictional statute does not confer
jur isdiction in those matters.42 Through case law we have carved out an exception
"where there is an alleged violation of fundamental constitutional rights in an
43
adjudicative proceeding producing a record capable of review."
We have described what is necessary for a proceeding to be deemed
"adjudicative":
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
41 See, e.g., Osborne v. State, Dep 't of Corr., 332 P.3d 1286, 1288 (Alaska
2014); Welton v. State, Dep't of Corr., 315 P.3d 1196, 1197 (Alaska 2014); Brandon v.
State, Dep't of Corr., 938 P.2d 1029, 1031-32 (Alaska 1997).
42 Welton, 315 P.3d at 1197 (quoting Brandon, 938 P.2d at 1031).
43 Id. at 1198 (quoting Brandon, 938 P.2d at 1032).
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----------------------- Page 15-----------------------
necessary for a conclusive determination of the matter in
question.[44]
Based on the rationale of our DOC decisions, the Municipality argues that "the Superior
Court lacked jurisdiction to consider Smith's constitutional grievances because the
decision was not made in an adjudicative proceeding and did not produce a record
capable of review for constitutional issues."
But our DOC decisions are inapposite. They define the limits of an
exception to what would otherwise be a complete lack of superior court appellate
jurisdiction in an area in which appeal is not "provided by law." 45 Here, appeal is
provided by law: we have held that municipalities' administrative decisions are
presumptively subject to judicial review,46 the Anchorage Assembly has directed, by
ordinance, that "appeals shall be to the superior court,"47 and the posted notice gives
the reader the same instruction. A right to appeal generally encompasses the right to a
record sufficient for appellate review.48 A record that does not satisfy this purpose
must, if possible, be made sufficient so that the right to appeal is not rendered
meaningless.
44 Id. (quoting Brandon, 938 P.2d at 1032).
45 AS 22.10.020(d).
46 Bethel Util. Corp. v. City of Bethel, 780 P.2d 1018, 1022 (Alaska 1989).
47 AMC 15.20.020(B)(15)(e) (2019).
48 This principle is often stated in the criminal context, but we do not see
why it would apply differently here. See, e.g., State v. Sahagun-Llamas , 458 P.3d 875,
882 (Ariz. App. 2020) (noting that constitutional right to appeal criminal conviction
"includes the right to a record that is sufficiently complete 'to afford defendant a
meaningful right of appeal' " (quoting State v. Schackart, 858 P.2d 639, 644 (Ariz.
1993))); In re M.S. , 940 S.W.2d 789, 791 (Tex. App. 1997) ("The right to appeal
includes the right to a record for meaningful review."); State v. Larson, 381 P.2d 120,
121-22 (Wash. 1963) (holding that due process requires a " 'record of sufficient
completeness' for review of the errors raised by the defendant in a criminal case"
(quoting Draper v. Washington , 372 U.S. 487, 497 (1963))).
-15- 7767
----------------------- Page 16-----------------------
The Municipality aptly cites our decision in Fields v. Kodiak City
Council49 about the importance of an administrative record to appellate review. There,
reviewing a city board of adjustment's decision to deny a zoning variance, we held that
"[o]nly by focusing on the relationship between evidence and findings, and between
findings and ultimate action, can we determine whether the board's action is supported
by substantial evidence."50 According to the Municipality, this supports its contention
that appellate review in this case is limited to the posted notice and the notice
requirements of the Code, because the record is otherwise devoid of "evidence and
findings." But this argument overlooks our resolution of Fields . Because the board's
failure to "set forth findings" made it "impossible to determine whether the denial [was]
based on appropriate factors," we remanded the case "for the purpose of directing the
Kodiak board of adjustment to set forth findings relevant to the conditions required for
51
granting a variance."
In Southeast Alaska Conservation Council v. State, we considered a
challenge to the State's decision to enter into a timber contract; the decision was based
on "a written finding and decision document by the Director of Forest, Land and Water
Management" which "reflect[ed], albeit somewhat sparsely, the facts and premises on
which the decision to enter into the contract was based."52 The superior court held a
49 628 P.2d 927 (Alaska 1981).
50 Id. at 933.
51 Id. at 934; see also White v. Alaska Com. Fisheries Entry Comm'n, 678
P.2d 1319, 1322 (Alaska 1984) ("The threshold question in an administrative appeal is
whether the record is adequate to permit meaningful judicial review.").
52 665 P.2d 544, 548-49 (Alaska 1983) superseded by statute on other
grounds, Ch. 86, § 1(b), SLA 2003, see Alaska Conservation Found . v. Pebble Ltd.
P'ship, 350 P.3d 273, 281 (Alaska 2015).
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trial on whether the contract violated "Alaska constitutional and statutory requirements
53
that timber be harvested on a sustained yield basis."
Preliminary to our review of the merits, we described the central
importance of a decisional document in administrative appeals:
A decisional document, done carefully and in good faith,
serves several salutary purposes. It facilitates judicial
review by demonstrating those factors which were
considered. It tends to ensure careful and reasoned
administrative deliberation. It assists interested parties in
determining whether to seek judicial review. And it tends to
restrain agencies from acting beyond the bounds of their
jurisdiction. [54]
We then explained that the superior court, on its appellate review, "should have focused
on the decisional document. If the document was found to contain an inadequate[ly]
reasoned explanation, the court was authorized to remand it to the agency for
supplementation instead of conducting a trial."55 We noted that in the case then before
us, the combination of "the Director's written decision and the trial evidence" meant
that "the reasoning underlying the sale [was] clear," so that "no remand for
supplementation [was] necessary."56 But we instructed that "[i]n future cases involving
important natural resource sales we strongly suggest . . . a remand if the basis for agency
57
action is unclear."
53 Id. at 548.
54 Id. at 549 (footnote omitted).
55 Id. (footnote omitted).
56 Id.
57 Id. ; see also White v. Alaska Com. Fisheries Entry Comm'n, 678 P.2d
1322 (Alaska 1984) (noting that if record is not "adequate to permit meaningful judicial
review" "and the basis of an administrative decision is unclear, it may be necessary to
remand the case for preparation of a record revealing the agency's reasoning process").
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----------------------- Page 18-----------------------
We express no view on whether the two-page administrative record in this
case will be an adequate basis on which to decide the constitutional issues raised on
appeal from the campsite abatement decision. It may be that no further insight into the
decisional process and no other factual development is necessary for the superior court
to decide the issues raised. If, however, the court determines that the existing
administrative record is inadequate for purposes of meaningful appellate review, our
cases illustrate some of the options for dealing with that inadequacy, including (1)
ordering the Municipality to supplement the record,58 (2) remanding the case to the
Municipality for further proceedings, and (3) conducting a trial de novo.59 The superior
court has discretion in deciding how best to ensure that it has a record sufficient for
60
appellate review.
CONCLUSION
We REVERSE the decision of the superior court and REMAND the case
to the superior court for further proceedings consistent with this opinion.
58 Sw. Marine, Inc. v. State, Dep't of Transp. & Pub. Facilities, Div. of
Alaska Marine H ighway Sys. , 941 P.2d 166, 172 (Alaska 1997) ("When the superior
court acts as an appellate court, it may decide to supplement the record or order a de
novo examination of the record at its discretion.").
59 Yost v. State, Div. of Corps., Bus. & Pro. Licensing, 234 P.3d 1264, 1274
(Alaska 2010) (recognizing that "we have upheld or directed application of de novo
review 'where the agency record is inadequate' " among other circumstances (quoting
S. Anchorage Concerned Coal., Inc. v. Mun . of Anchorage Bd. of Adjustment , 172 P.3d
774, 778 (Alaska 2007))).
60 Sw. Marine , 941 P.2d at 172.
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