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Human Resources Company v. Alaska Commission on Postsecondary Education (10/16/97), 946 P 2d 441
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.
THE SUPREME COURT OF THE STATE OF ALASKA
HUMAN RESOURCES COMPANY, )
) Supreme Court No. S-7718
) Superior Court No.
v. ) 3AN-96-00452 CI
ALASKA COMMISSION ON POST- ) O P I N I O N
SECONDARY EDUCATION, STATE )
OF ALASKA, DIANE BARRANS, )
Appellee. ) [No. 4894 - October 16, 1997]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Peter A. Michalski, Judge.
Appearances: Michaela Kelley, Kelley &
Kelley, Anchorage, for Appellant. Teresa
Williams, Assistant Attorney General,
Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
I. FACTS AND PROCEEDINGS
The Alaska Commission on Postsecondary Education
(Commission) has jurisdiction over certain educational
institutions, which are described generally in AS 14.48.020. One
of the Commission's responsibilities is to issue certificates of
authorization to those institutions.
Although the Commission's jurisdiction is delineated in
a statute, the Commission historically has issued certificates of
authorization to institutions that were exempt from its
jurisdiction, if the institution elected to undergo the
application process. This authorization presumably benefits the
authorized institution because the certificate provides consumers
with some reassurance of the institution's credentials.1
The Commission has asserted that it discontinued its
practice of issuing certificates to exempt institutions in 1992
[s]ometime during the period 1992-93, the
incumbent executive director determined that
the Commission and the student revolving loan
fund did not have the resources to review
applications of exempt schools. As those
schools came up for renewal, new
"authorizations"were not issued.
Pursuant to the Commission's historical practice, Human
Resource Company (HRC) had applied for and received several such
certificates of authorization. In March 1995, HRC filed an
application with the Commission to renew its authorization to
operate as a postsecondary education institution. In a
memorandum accompanying its application, HRC advised the
HRC does not offer Postsecondary
Education. HRC prepares adults to take the
GED, provides K-12 remediation classes for
out of school youth, and referral to a
variety of vocational education. . . .
. . . HRC does not have an enrollment
contract with students since our contracts
are with governmental agencies and not with
On May 17, 1995, a Commission staff member wrote HRC advising
that HRC was exempt from the Commission's authorization
requirements. The staff member's letter also advised that "[i]n
the event that you decide to institute postsecondary level
courses, and you intend to charge those students tuition for that
training, please contact us."
On September 1 HRC requested an administrative hearing
to contest the Commission's finding that HRC was exempt from the
Commission's authority. The Commission did not respond to the
request. HRC made another request for a hearing on October 2.
On October 23 Diane Barrans, Executive Director of the
Commission, wrote HRC a letter confirming the Commission staff's
finding that HRC's programs were outside the ambit of the
Commission's authority. The letter stated that "it is clear that
Alaska Statutes exempt K-12 and GED programs from the
Commission's authority . . . ." The letter also stated:
You have requested to appeal staff's decision
to the Commission. You are free to address
the Commission during the public testimony
session at their next quarterly meeting.
However, I would point out that staff is
clearly complying with a point of law, not an
appealable regulation or agency policy.
The Commission's next meeting is scheduled to
be held at the Anchorage Sheraton Hotel,
November 30 and December 1, 1995. . . .
Please call my assistant . . . if you need
additional information about this meeting.
No representative of HRC appeared at the Commission's
meeting. However, in a letter dated December 6, HRC renewed its
demand for an administrative hearing. The Commission's response
was as follows:
In none of [the materials sent to the
Commission by HRC] is any disagreement
asserting to the factual finding that your
program offers adults basic education in
grades K - 12 and GED preparation courses.
There is no right to an evidentiary hearing
in the absence of a factual dispute. . . .
For the reasons stated herein, I am
denying your request for an administrative
hearing. This letter constitutes the final
decision of the agency.
On January 12, 1996, HRC filed in the superior court a
complaint against the Commission. As a remedy, HRC requested a
"Writ of Mandamus requiring Defendant to issue Plaintiff
authority to operate in Alaska as a Post Secondary Institution,
with all the rights and responsibility attendant thereto," or
alternatively that the court enjoin the Commission from ever
attempting to regulate HRC in the future.
Rather than filing an answer, the Commission filed a
motion for summary judgment. Among the Commission's arguments in
its motion for summary judgment was that HRC's complaint "can
only be maintained as an administrative appeal governed by
HRC did not respond to the Commission's motion for
summary judgment. Instead, on March 22, HRC filed a request for
an extension of time to respond until after it conducted
discovery. The Commission partially opposed the extension. The
Commission agreed to a brief extension to allow HRC to respond to
its motion for summary judgment, but opposed an extension of time
to take discovery. After HRC served discovery requests on the
Commission on April 12, the Commission filed a motion for a stay
On April 26 HRC filed both an amended complaint and an
opposition to the motion for stay of discovery. HRC's amended
complaint recited that HRC "files a direct action . . . ."
On May 7 the Commission filed a second dispositive
motion titled "Motion to Dismiss or, Alternatively, to Convert to
On May 13 the superior court issued an order stating,
"Upon consideration of defendant's 'Motion to Dismiss or,
Alternatively to Convert to an Appeal' and any opposition thereto
. . . this action is dismissed."
On July 25 the superior court awarded the Commission
full attorney's fees, noting that the award was warranted because
"this action was frivolous and fees were extremely reasonable,
the hours used were reasonable, the State had advised the
plaintiff of the proper action, and full fees would not deter
appropriate appeals by similarly situated litigants."
HRC appeals. It argues that the superior court erred
in (1) refusing to issue a writ of mandamus against the
Commission, (2) dismissing HRC's lawsuit without allowing HRC to
conduct discovery, and (3) refusing to address HRC's request to
treat its action as an appeal.
A. Based on the application materials submitted by HRC,
the Commission correctly determined that HRC is not
within the Commission's jurisdiction.2
Alaska Statute 14.48, titled "Regulation of
Postsecondary Educational Institutions,"establishes restrictions
on "postsecondary educational institutions" and empowers the
Commission to administer the provisions of the chapter. Alaska
Statute 14.48.020 prohibits a person from operating "a post
secondary educational institution in the state unless the
institution has a valid authorization to operate issued under
this chapter or is exempt from the provisions of this chapter."
Alaska Statute 14.48.210(8) states that the term "postsecondary
an academic, vocational, technical, home
study, business, professional, or other
school, college, or university, or other
organization or person, offering educational
credentials, or offering instruction or
educational services primarily to persons who
have completed or terminated their secondary
education or who are beyond the age of
compulsory high school attendance for
attainment of educational, professional, or
Alaska Statute 14.48.030(a) provides that "[i]nstitutions exclu
sively offering instruction at one, some, or all levels from
preschool through grade 12 are exempt from the provisions of this
According to its submitted application materials, HRC
"prepares adults to take the GED, provides K-12 remediation
classes for out of school youth, and referral to a variety of
vocational education and social service agencies."
In considering whether the Commission was correct in
concluding on the basis of HRC's application materials that HRC
is not within the Commission's jurisdiction, it will be helpful
to consider separately two aspects of HRC's programs as described
in HRC's application materials.
The first aspect of HRC's programs we consider is HRC's
"remediation classes for out of school youth, and referral to a
variety of vocational education and social service agencies."
This aspect of HRC's programs clearly falls outside the
jurisdiction of the Commission because (1) these programs do not
fall within the statutory definition of "postsecondary education"3
and (2) the programs fall within the statutory exemption.4
The second aspect of HRC's programs we consider is
HRC's adult GED program. An argument can be made that HRC's
adult GED program brings HRC within the Commission's
jurisdiction: an organization offering an adult GED program may
fall within the literal language of the statutory definition of a
"postsecondary educational institution," because it is an
organization "offering . . . educational services . . . to
persons who . . . are beyond the age of compulsory high school
attendance for attainment of educational . . . objectives."
Nevertheless, for three reasons we conclude that
offering an adult GED program does not bring an organization
within the Commission's jurisdiction.
First, our view is that an organization that offers an
adult GED program falls within the terms of the above-mentioned
statutory exemption: an organization that offers an adult GED
program can fairly be characterized as one that offers
"instruction at one, some, or all levels from preschool through
Second, construing the term "postsecondary education"
to encompass an adult GED program would be contrary to common
usage. See, e.g., Davila v. Davila, 908 P.2d 1027, 1030 (Alaska
1995) (stating that "Fran obtained her GED in 1987, but has no
postsecondary education except for a six-month computer training
course"). Under Alaska law, words and phrases in statutes
generally are to be construed according to their common and
Third, consideration of the purposes underlying the
statutory scheme militates against a conclusion that an
organization which offers adult GED programs is within the
Commission's jurisdiction. As indicated in AS 14.48.010(a), the
purposes underlying regulation of postsecondary educational
(2) prohibiting the granting of false or
misleading educational credentials;
(3) regulating the use of academic
terminology in designating educational
. . . .
(5) providing for the preservation of
essential academic records . . . .
Regulating an organization offering an adult GED preparation
program would not serve any of these purposes.
B. Given that the Commission was correct in concluding on
the basis of HRC's application materials that HRC is
not within its jurisdiction, HRC has no valid claim of
entitlement to a permit from the Commission.
The Commission has conceded that, historically, it
issued certificates of authorization to institutions that were
exempt from its jurisdiction, if the institution elected to
undergo the application process.
We note, however, that the Commission's historical
practice does not provide a basis for HRC to argue that it is now
entitled to receive such permits. See Far North Sanitation, Inc.
v. Alaska Pub. Util. Comm'n, 825 P.2d 867, 870-71 & n.5 (Alaska
1992) ("Jurisdictional defects deprive the agency of power to
adjudicate or regulate the subject matter . . . . A party
cannot, by waiver, endow an administrative agency with powers
beyond those which are authorized by legislative grant.").
C. In view of the foregoing discussion, the remainder of
HRC's arguments are without merit.
Given that the Commission correctly concluded on the
basis of HRC's application materials that HRC is not within the
Commission's jurisdiction, there is no material factual dispute
in this case, and HRC adduces no reason for us to conclude that
it is entitled to any of the remedies it requests. Indeed, all
of HRC's remaining claims before this court appear to be
predicated on the assumption that the Commission has jurisdiction
over HRC. Specifically, HRC offers no cogent argument that
provides support for its claim that it is entitled to a writ of
mandamus ordering the Commission to issue HRC a permit;6 or for
its claim that it was entitled to administrative hearings before
the Commission;7 or for its claim that Civil Rule 56(f) entitled
it to a stay and to a discovery order in the superior court.8
Because HRC makes no valid argument as to why it is
entitled to any of the relief it seeks, whether HRC's action is
appropriately characterized as a direct action or as an appeal is
irrelevant: HRC's action was properly dismissed because it could
not succeed either as an appeal or as a direct action.
If, as HRC's brief seems to suggest, HRC is conducting
activities that cause HRC to come within the Commission's
jurisdiction, HRC is entitled to file a new application with the
Commission containing information to this effect. However, under
the rule requiring exhaustion of administrative remedies,9 HRC is
not entitled to any judicial relief until it does so.10
The judgment of the superior court is AFFIRMED.
1 Plaintiff's complaint notes that HRC wishes to
"[r]epresent to vendors that it operates under the auspices of
the Alaska Post Secondary Commission."
2 The agency's determination of this point is a question
of law involving no agency expertise and is therefore reviewed
under the substitution of judgment standard. Peninsula
Correctional Health Care v. Department of Corrections, 924 P.2d
425, 426 (Alaska 1996).
3 A program described as one for out of school youth is
not one which offers "educational credentials . . . or offering
instruction or educational services primarily to persons who have
completed or terminated their secondary education or who are
beyond the age of compulsory high school attendance for
attainment of educational, professional, or vocational
objectives." AS 14.48.210(8).
4 A program which "provides K-12 remediation classes"and
"referral [services]"to "out of school youth" can fairly be
characterized as "instruction at one, some, or all levels from
preschool through grade 12." AS 14.48.030(a).
5 See AS 01.10.040.
6 As HRC states in its brief, "[m]andamus is proper to
command an official to perform an act which is a positive command
and so plainly prescribed as to be free from doubt, and the claim
must be clear and certain . . . ." Since HRC is not under the
Commission's jurisdiction, there is no basis whatsoever to
command the Commission to issue the permit.
7 There is no right to an evidentiary hearing in the
absence of a factual dispute. See, e.g., Douglas v. State, Dep't
of Revenue, 880 P.2d 113, 117 (Alaska 1994); Smith v. State,
Dep't of Revenue, Child Support Enforc. Div., 790 P.2d 1352, 1353
8 Civil Rule 56(f) provides:
Should it appear from the affidavits of
a party opposing the motion that the party
cannot for reasons stated present by
affidavit facts essential to justify the
party's opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.
In its brief to this court, HRC failed to adduce any reason why
the discovery it sought would have furnished HRC with "facts
essential to justify [HRC's] opposition" to the Commission's
motion to dismiss.
9 See, e.g., Standard Alaska Prod. Co. v. State, Dep't of
Revenue, 773 P.2d 201, 206 (Alaska 1989); Ben Lomond, Inc. v.
Municipality of Anchorage, 761 P.2d 119, 122 (Alaska 1988).
10 The conclusion that HRC must first exhaust its
administrative remedies also applies to HRC's claim that it has
"not even been refunded the $100.00 application fee."