Brandon v. State, Department of Corrections

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Richard Brandon, a state prisoner serving a long sentence, was transferred to a prison in Arizona. He contends that the transfer interferes with his rehabilitation because his family will not be able to visit him in Arizona. The question presented by this case is whether the superior court had jurisdiction to hear his administrative appeal from the transfer decision of the Department of Corrections (DOC). Our answer is “yes.”

II. FACTS AND PROCEEDINGS

Richard Brandon is serving a twenty-five-year sentence for a 1990 conviction. Due to overcrowding in Alaska prisons DOC implemented a population management plan. As part of this plan, DOC contracted with the Corrections Corporation of America to house about 200 Alaska inmates at the Central Arizona Detention Center in Florence, Arizona.

DOC selected inmates for transfer by asking for volunteers and then “going through its records and finding inmates who fit two broad categories.” One of the categories was “inmates with seven and one-half or more years to serve.” Brandon was selected under this category.

Initially, Brandon was incarcerated at the Spring Creek Correctional Center. On November 28,1994, Brandon was given notice of a classification hearing concerning “[pjossible transfer to an institution outside Alaska.” A classification hearing was held November 30, 1994. Hearing Officer Donald Nelson recommended transfer while acknowledging that Brandon’s family was in Alaska and made weekly visits. Superintendent Larry Kinche-loe subsequently approved the recommendation.

On December 15, 1994, Brandon appealed to DOC Commissioner Larry McKinistry. In this appeal, Brandon claimed: (1) the hearing was illegal because only two hearing officers were present; (2) the outcome of the hearing was predetermined; (3) fair consideration was not given to the rehabilitative nature of family visits; and (4) the hearing *1031officers erred in finding that rehabilitation would not be adversely affected by the transfer. On December 19 the appeal was returned as premature because the central classification office had not yet notified Brandon of the transfer. On that same day, Chief Classification Officer Robert P. Spinde informed Brandon that due to a possible error in providing notice of the hearing, Brandon would be given forty-eight hours to submit further relevant information.

On January 1, 1995, Brandon filed an appeal from DOC’s December 19 decision with the superior court. The appeal claimed that the December 15 appeal to the DOC commissioner was “arbitrarily rejected.” The appeal listed various due process violations.

On January 3 Brandon was given notice of his transfer to the Arizona prison. On January 8 Brandon submitted an appeal similar to the December 15 appeal to the DOC deputy commissioner. On January 10 this appeal was denied. It appears that no appeal of this denial was filed; rather, the superior court continued to work from the original January 1 appeal.

DOC moved to dismiss the appeal claiming the court lacked jurisdiction. It argued that the court did not have jurisdiction to review this type of decision in an administrative appeal because the decision to transfer Brandon was not made in an “adjudicative” proceeding or in a proceeding that produced a record capable of review.

On January 20 Brandon was transferred. On February 8 the superior court granted DOC’s motion to dismiss the appeal, finding that the court lacked jurisdiction because the decision to transfer “was not made in the course of an adjudicative proceeding which produced a record capable of review.”

Brandon appeals this decision, claiming that the superior court erred in granting the motion to dismiss for lack of jurisdiction.

III. STANDARD OF REVIEW

The issues of statutory interpretation involved in this appeal are reviewed under a substitution of judgment standard. Longwith v. State, Dep’t of Natural Resources, 848 P.2d 257, 260 n. 5 (Alaska 1992). Constitutional issues present questions of law and are to be reviewed de novo. Keane v. Local Boundary Comm’n, 893 P.2d 1239, 1241 (Alaska 1995).

IV. DISCUSSION

Alaska Statute 22.10.020(d) states, “The superior court has jurisdiction in all matters appealed to it from a[n] ... administrative agency when appeal is provided by law.” We have previously stated that neither the Administrative Procedure Act, AS 44.62.010-.650, nor any other statutory provision provides for an appeal from a DOC administrative decision. Owen v. Matsumoto, 859 P.2d 1308, 1309 (Alaska 1993). Thus AS 22.10.020(d) does not confer jurisdiction on the superior court to hear this appeal.

However, we have held that administrative appeals are proper from certain DOC determinations even when not authorized by statute. See Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990). For example, “an inmate [has] a right to judicial review of major disciplinary proceedings when issues of constitutional magnitude are raised.” Id. at 660; Department of Corrections v. Kraus, 759 P.2d 539, 540 (Alaska 1988); McGinnis v. Stevens, 543 P.2d 1221, 1236 n. 45 (Alaska 1975). In Owen, we explicitly declined to hold that “judicial review of DOC administrative decisions is limited to disciplinary action.” 859 P.2d at 1310. Instead we stated that “[a]ny alleged violation of fundamental constitutional rights must be afforded judicial review.” Id. Thus, it is clear that the superi- or court has jurisdiction to hear an administrative appeal of a DOC action involving constitutional issues.

In Kraus, we listed several reasons for allowing appellate review of DOC disciplinary decisions. These included the fact that the review would be based on the tape recording of the proceedings, rather than de novo reception of evidence, which is characteristic of appeals, and that appellate review is less expensive and time consuming than other avenues of judicial oversight. Finally, we stated a clear preference for reviewing administrative agencies’ adjudicative decisions by means of an appeal. 759 P.2d at *1032540. Therefore an administrative appeal is appropriate where there is an alleged violation of fundamental constitutional rights in an adjudicative proceeding producing a record capable of review. Owen, 859 P.2d at 1310.

Brandon argues that the classification hearing was an adjudicative proceeding producing a record reviewable on administrative appeal. Brandon further asserts that the classification decision involved a fundamental constitutional right.

A. Is There a Fundamental Constitutional Right Involved?

Brandon asserts a fundamental right to rehabilitation under the Alaska Constitution. DOC correctly concedes that there is a fundamental right to rehabilitation. Alaska Const, art. I, § 12; Abraham v. State, 585 P.2d 526, 530-33 (Alaska 1978).

Alaska Statute 33.30.061(b) provides that the DOC commissioner may designate an out-of-state prison for a prisoner only upon a determination “that rehabilitation or treatment of the prisoner will not be substantially impaired.” Regulation 22 Alaska Administrative Code 05.252 echos this requirement.1 Brandon asserts that DOC erred in determining that his rehabilitation would not be substantially impaired by transferring him to the Arizona facility. This is a question grounded on a fundamental constitutional right.2

B. Is the Classification Hearing an Adjudicative Proceeding?

We have not explicitly defined the term “adjudicative proceeding” in the context of an administrative appeal. We have, however, discussed the meaning of adjudication in an administrative res judicata case. We explained:

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 question. Restate*1033ment (Second) of Judgments § 83(2) (1982).

Johnson v. Alaska State Dep’t of Fish & Game, 836 P.2d 896, 908 n. 17 (Alaska 1991). The classification hearing has many of the qualities of an adjudication. The prisoner is entitled to notice. 22 AAC 05.216(b).3 The prisoner may prepare evidence before the classification committee. 22 AAC 05.216(b)(7).4 The committee is directed to consider whether the prisoner’s rehabilitation will be impaired. 22 AAC 05.252(a). The point at which a final decision is rendered by the committee and the various internal avenues of appeal are clear. Further, the hearing addresses individual rather than general policy determinations. See Wickersham v. Commercial Fisheries Entry Comm’n, 680 P.2d 1135, 1144 (Alaska 1984) (“When an agency makes individual factual determinations on which the impact of the law on the individual depends, it is acting in an adjudicative capacity.”). For these reasons we conclude that the classification hearing is an adjudicative proceeding.

C. Did the Classification Hearing Produce a Record Capable of Review

The hearing is required to be “tape recorded and kept in transcribable form.” 22 AAC 05.216(4).5 In addition the committee is to “make written factual findings” and “indicate the evidence relied upon” so as to “provide an adequate basis for review of its decision.” 22 AAC 05.216(b)(8).6 A form including the factors on which the decision was made is to be issued by the classification committee. 22 AAC 05.216(c).7

DOC finds significance in the fact that “[cjentral classification independently solicited and received information regarding such factors as an inmate’s medical condition or legal proceedings.” However, the information so received was documentary, is preserved in the record, and in any case was germane only to the initial classification decision, an issue not in dispute. Other than alleged procedural errors, the only disputed issue was whether the committee erred in determining that Brandon’s rehabilitation would not be substantially impaired by the transfer. The evidence relevant to that issue is contained in the record.

V. CONCLUSION

The classification determination implicates a constitutional right. The classification committee hearing is an adjudication and produces a record adequate for review. Though Brandon has other potential remedies, this court has clearly expressed a preference for an administrative appeal. Therefore we hold that the superior court has jurisdiction to hear the present administrative appeal.

REVERSED and REMANDED.

. 22 AAC 05.252 provides in part:

(a) A prisoner will, in the department's discretion, be transferred to a contract facility outside Alaska, except one operated by the Federal Bureau of Prisons, if the prisoner is provided a classification hearing as set out in 22 AAC 05.216 and a determination is made that the prisoner’s rehabilitation or treatment would not be substantially impaired by the transfer.

. That visitation is important to rehabilitation has been widely recognized.

Visiting is the most direct link for the inmate with the world left behind. Indeed, visiting is indispensable to any realistic program of rehabilitation. No single factor has been proven to be more directly correlated with the objective of a crime-free return to society than visiting. The reason for this is almost too obvious to state: “Strained ties with family and friends increase the difficulty of making the eventual transition back to the community.” If those ties are to be preserved, visiting is imperative.

2 Michael Mushlin, Rights of Prisoners § 12.00 (2d ed.1993) (footnotes omitted).

Prison visits have long been recognized as critically important to inmates as well as the communities to which the inmates ultimately will return.

Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 468, 109 S.Ct. 1904, 1912-13, 104 L.Ed.2d 506 (1989) (Marshall, J. dissenting).

Preservation of the family unit is important to the reintegration of the confined person and decreases the possibility of recidivism upon release.

Id. at 468, 109 S.Ct. at 1912-13 (quoting N.C.C.U.S.L. Model Sentencing and Corrections Act, § 4 — 115 Comment (1979)).

Virtually every statement on visitation by prison officials from the ACA Manual to the State Association of Correction Administrators (1972), every national study (e.g., the NAC) and every major textbook on corrections stresses the critical nature of visitation both in terms of the reduction of tension inside the prison and the facilitation of the ultimate rehabilitation of the prisoner by strengthening his ties with the "free world.”

ABA Standards for the Administration of Criminal Justice, 14 Am.Crim.L.Rev. 377, 502 (1977).

Our recognition that visitation privileges are a component of the constitutional right to rehabilitation does not define their required scope or the permissible limits on their exercise. Such definitions will have to be achieved in future adjudications.

. 22 AAC 05.216(b) provides in part:

The prisoner is entitled to at least 48 hours' advance written notice of a classification hearing. ...

. 22 AAC 05.216(b)(7) provides in part:

[B]efore the hearing the prisoner may prepare testimony, solicit statements, or compile other evidence if such action would not create a substantial risk of reprisal or undermine security of the facility.

. 22 AAC 05.216(b)(4) provides in part:

[I]f the purpose of the hearing is ... transfer to a facility outside of Alaska, the hearing will be tape recorded and kept in transcribable form for
(A) 12 months if the classification action is appealed within the department;
(B) three years if the classification action is appealed to the Superior Court or the classification action resulted in a transfer to a facility outside of Alaska; or
(C) 30 days if the classification action is not appealed.

. 22 AAC 05.216(b)(8) provides in part:

[T]he classification committee will make written factual findings, and will indicate the evidence relied upon in sufficient detail so as to provide an adequate basis for review of its decision....

. 22 AAC 05.216(c) provides in part:

The classification committee shall complete the Classification Form for Sentenced Prisoners _ The decision as to custody and security status must be based on the factors contained in the form.