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Hertz v. State (01/09/2004) ap-1911
Hertz v. State (01/09/2004) ap-1911
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SIDNEY R. HERTZ, ) Court of
Appeals No. A-8422
) Trial Court Nos. 3AN-
02-4752 CI
Appellant, )
3AN-S83-6873 CR
)
v. )
) O
P I N I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1911 - January 9, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Peter A. Michalski,
Judge.
Appearances: Sidney R. Hertz, pro se,
Juneau, for Appellant, Marilyn J. Kamm,
Assistant Attorney General, Department of
Law, Criminal Division, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Stewart, Judge,
and Joannides, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Chief Judge
Sidney R. Hertz filed an application for post-
conviction relief in which he claimed that the Alaska Department
of Corrections failed to provide him with the proper equipment to
draft pleadings and with the proper medical and dental care.
Hertz also claimed that the Department of Corrections instituted
administrative disciplinary proceedings against him in
retaliation for filing his application. Superior Court Judge
Peter A. Michalski denied Hertzs application. Hertz appeals
Judge Michalskis rulings to this court. We conclude we do not
have jurisdiction to decide Hertzs appeal.
Factual and procedural background
In 1984, Hertz was convicted of second-degree murder
and sentenced to a 40-year term.1 On direct appeal, Hertz
challenged his conviction and sentence, and we affirmed the
superior court.2 Hertz then filed several applications for
post-conviction relief. We affirmed the superior courts
dismissal of these applications.3
In February 2002, Hertz filed his most recent
application for post-conviction relief. In this application,
Hertz makes several claims and argues that he is entitled to
relief under AS 12.72.020(c). First, Hertz claims that the
Alaska Department of Corrections has failed to provide him with a
properly functioning electronic legal typewriter as well as low-
cost typing paper to use with the typewriter. Associated with
this claim is Hertzs allegation that the law library where the
typewriter is located presents a safety hazard because of its
lack of readily accessible emergency exits.
Second, Hertz claims that the Department of Corrections
has provided him with substandard medical and dental care which
has allegedly caused him a variety of physical problems ranging
from loss of teeth to high blood pressure, strokes, and prostate
cancer. Hertz also alleges that due to a change in Department of
Corrections policy, the department is now requiring him to pay
for some of his medical and dental treatment.
Third, Hertz claims that as a result of complaining
about the prison law library to the Department of Corrections and
as a result of filing his most recent application for post-
conviction relief, the Department of Corrections retaliated
against him by instituting a disciplinary action against him.
The Department of Corrections disciplinary committee concluded
that Hertz took, among other things, extra towels and condiments
to his room in violation of 22 AAC 05.400(d)(7). The committee
sentenced Hertz to the standard punishment of 10 days of
segregation. Hertz appealed to the superintendent, who upheld
the committees findings. (Hertz did not allege in any of his
filings before the Department of Corrections that the
disciplinary proceeding was in response to his filing an
application for post-conviction relief.) Hertz also alleged that
the Department of Corrections retaliated against him by failing
to promptly provide him a return mail receipt for certain
mailings.
On June 12, 2002, Hertz filed a motion to amend his
application. In his amended application, Hertz did not raise any
new issues.
Hertz also filed a request for court-appointed counsel
and filed a motion requesting that Judge Michalski recuse himself
because Judge Michalski had worked for the Office of Special
Prosecutions and Appeals and apparently was involved in Hertzs
prosecution eighteen years earlier.
On June 17, 2002, the State filed a motion to dismiss
Hertzs application on the grounds that it failed to state a claim
for which the superior court could grant relief and because the
superior court lacked appellate jurisdiction to consider the
claims raised in the application.
Judge Michalski declined to recuse himself because the
matter before the court was not related to Hertzs conviction and
sentence, but rather involved a new claim that the Department of
Corrections is violating his right to prepare legal pleadings and
to medical and dental necessities. Judge Michalski denied Hertz
court-appointed counsel. Judge Michalski also denied Hertzs
motion to amend his application, concluding that the attempted
amendment challenged a post-sentencing disciplinary decision of
the Department of Corrections and as such was not the appropriate
subject matter for an application for post-conviction relief.
Judge Michalski granted the States motion to dismiss Hertzs
application because it did not involve subject matter that was
cognizable under a post-conviction relief proceeding and because
there were no fundamental constitutional rights at issue.
Hertz appeals Judge Michalskis rulings.
This court does not have jurisdiction over Hertzs
appeal
Hertz argues that he is entitled to bring an action for
post-conviction relief under AS 12.72.020(c)(1) because his
claims are based on a final administrative decision of the
Department of Corrections.
Alaska Statute 12.72.010 provides for post-conviction
relief and sets out the following limitations on applications for
post-conviction relief.
(c) Notwithstanding (a)(6) of this
section, [prohibiting filing an application
for post-conviction relief if the applicant
has filed a previous application] a court may
hear a claim based on a final administrative
decision of the Board of Parole or the
Department of Corrections if
(1) the claim was not and could not have
been challenged in a previous application for
post-conviction relief filed under this
chapter or under the Alaska Rules of Criminal
Procedure; and
(2) a previous application for
post-conviction relief relating to the
administrative decision has not been filed
under this chapter or under the Alaska Rules
of Criminal Procedure.
Hertz argues that AS 12.72.020(c) gives this court jurisdiction
to decide his claim.
The court of appeals is a statutory court with limited
jurisdiction.4 Our jurisdiction is set in AS 22.07.020. In
general, that statute gives us jurisdiction over criminal cases.
In particular, the statute provides that we have jurisdiction in
matters involving post-conviction relief.5
Alaska Statute 12.72.010 is the statute that provides
for post-conviction relief. That statute provides for post-
conviction relief in matters affecting a defendants conviction
and sentence. The statute does not discuss conditions of
incarceration or prison disciplinary matters as within the scope
of a post-conviction relief action. It therefore does not appear
to us that the post-conviction relief statute is intended to
apply to the matters that Hertz raises.
Furthermore, since this courts inception in 1980,
appeals of administrative decisions of the Department of
Corrections involving prison conditions and prison disciplinary
matters have gone to the Supreme Court of Alaska. In Rust v.
State,6 the supreme court concluded that a prisoner had a right
to institute an independent civil action seeking treatment for
his dyslexic condition.7 The court declined to determine whether
a prisoner could also raise such claims in an application for
post-conviction relief.8 But subsequent cases have made clear
that administrative appeals that deal with a defendants
conditions of imprisonment or prison disciplinary matters must go
to the supreme court, not this court.
In Department of Corrections v. Kraus,9 two prisoners
were sanctioned by a prison disciplinary committee. After
exhausting their remedies within the prison system, they filed an
administrative appeal in the superior court. The State argued
that the action of the Department of Corrections was not
appealable and that the courts lacked jurisdiction to decide the
appeal. The supreme court granted the States petition for review
on this issue. The supreme court held that the state courts had
jurisdiction to review the Department of Correctionss action to
determine whether the defendants had received fundamental due
process.10 The supreme court specifically rejected the States
suggestion that any review of the Department of Correctionss
decision should be conducted as a post-conviction relief
action.11 The court stated that the proper procedural vehicle
was an appeal of the administrative decision rather than an
application for post-conviction relief.
In Higgins v. Briggs12 we followed Kraus stating:
Under AS 22.05.010(a), a party has only one
appeal as a matter of right from an action or
proceeding commenced in either the district
court or the superior court. And AS
22.05.010(c) declares that decision[s] of the
superior court on an appeal from an
administrative agency may be appealed to the
supreme court as a matter of right. From
these two statutory provisions, it follows
that if a party wishes to exercise the right
of appeal from the superior courts decision
of an administrative appeal, the party must
take that appeal to the supreme court, not to
this court. This is, in fact, where such
appeals have gone since this court was
established in 1980.[13]
We therefore conclude that we do not have jurisdiction
over Hertzs appeal. Hertz is appealing the actions of the
Department of Corrections in an administrative appeal. The
matters that he raises involve his conditions of confinement and
prison disciplinary matters. The supreme court and this court
have previously determined that the supreme court has
jurisdiction over these matters. The legislature does not appear
to have intended to modify this courts jurisdiction by passing AS
12.72.020(c). We have examined the legislative history, and
there is no indication that this was the legislatures intent.
Furthermore, AS 12.72.010, which sets out the scope of post-
conviction relief, does not appear to apply to administrative
appeals from Department of Correctionss decisions concerning
conditions of incarceration or prison disciplinary matters.
Alaska Statute 12.72.020(c) appears to apply to claims that more
directly affect a prisoners conviction and sentence, such as
whether the Department of Corrections correctly interpreted the
length of a prisoners sentence or properly computed the amount of
good time to which the prisoner was entitled. These matters
would fall under the scope of an application for post-conviction
relief and this court would have jurisdiction over these matters.
But this court does not have jurisdiction over the issues that
Hertz is raising. We accordingly DISMISS Hertzs appeal on the
ground that we do not have jurisdiction to decide it.
_______________________________
* Sitting by assignment made pursuant to Article IV,
Section 16 of the Alaska Constitution.
1 The procedural history can be found in Hertz v. State,
Alaska App. Memorandum Opinion and Judgment No. 4586 (June 19,
2002), 2002 WL 1333029.
2 Hertz v. State, Alaska App. Memorandum Opinion and
Judgment No. 1225 (Sept. 10, 1986).
3 See, e.g., Hertz v. State, Alaska App. Memorandum
Opinion and Judgment No. 4713 (June 4, 2003), 2003 WL 21282168;
Hertz v. State, Alaska App. Memorandum Opinion and Judgment No.
4664 (Feb. 12, 2003), 2003 WL 294408; Hertz v. State, Alaska App.
Memorandum Opinion and Judgment No. 4506 (Nov. 28, 2001), 2001 WL
1518771; Hertz v. State, Alaska App. Memorandum Opinion and
Judgment No. 3880 (Sept. 2, 1998), 1998 WL 557611; Hertz v.
State, Alaska App. Memorandum Opinion and Judgment No. 3069 (Jan.
11, 1995); Hertz v. State, Alaska App. Memorandum Opinion and
Judgment No. 2477 (July 29, 1992); Hertz v. State, Alaska App.
Memorandum Opinion and Judgment No. 2358 (Feb. 19, 1992).
4 AS 22.07.010.
5 AS 22.07.020(a)(2).
6 584 P.2d 38 (Alaska 1978).
7 Id. at 39.
8 Id. at 39 n.3.
9 759 P.2d 539 (Alaska 1988).
10 Id. at 541.
11 Id. at 540.
12 876 P.2d 539 (Alaska App. 1994).
13 Id. at 540.
