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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ERIC J. HOLDEN, | ) |
| ) Court of Appeals No. A-10073 | |
| Appellant, | ) Trial Court No. 3PA-05-1569 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2179 August 15, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Eric J. Holden, in propria
persona, Wasilla, for the Appellant. Susan
S. McLean, Chief Assistant Attorney General,
Criminal Division, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case is an appeal from the decision of the
superior court in an administrative appeal (i.e., an appeal to
the superior court from the final decision of an administrative
agency). Under AS 22.05.010(c) and Alaska Appellate Rule 202(a),
appeals of this nature are to be taken to the Alaska Supreme
Court.
The Appellant, Eric J. Holden, initially filed his
appeal in the supreme court. Soon after, however, the State
filed a motion seeking transfer of Holdens appeal to this Court.
The States motion was granted by a single justice of the supreme
court, and Holdens appeal was then docketed in this Court.
The transfer of Holdens appeal to this Court by a
single member of the supreme court does not relieve this Court of
its duty to examine whether we have jurisdiction to decide
Holdens appeal. As we noted in Higgins v. Briggs, 876 P.2d 539,
541 (Alaska App. 1994), an appellate court has both the authority
and the obligation to determine whether particular litigation
falls within its subject-matter jurisdiction.
As we explain more fully in this opinion, we conclude
that we have no jurisdiction to decide Holdens appeal, and that
we must transfer Holdens case to the appellate court that does
have jurisdiction to decide his appeal: the Alaska Supreme
Court.
The background and procedural history of Holdens case
In 1977, Eric J. Holden was convicted of
assault with intent to commit rape under Alaskas former
criminal code. The Alaska Supreme Court affirmed his
conviction in Holden v. State, 602 P.2d 452 (Alaska
1979).
In June 2005, the Alaska Department of Public
Safety notified Holden that the Department viewed his
offense as an aggravated sex offense for purposes of
the Sex Offender Registration Act (AS 12.63) and that,
as a consequence, Holden was required to register as a
sex offender for life and report quarterly to the
Department. See AS 12.63.020(a)(1)(A).
After he received this notification, Holden
filed an appeal to the Commissioner of Public Safety.
In this appeal, Holden contested the Departments
conclusion that his offense was an aggravated sex
offense within the meaning of the Sex Offender
Registration Act.
Holdens argument was based on the wording of
AS 12.63.100(1), the statute that defines aggravated
sex offense. In June 2005, the pertinent portion of
that statute subsection (C) declared that the term
aggravated sex offense meant
a crime, or an attempt ... to commit a crime,
under AS 11.41.410 [the first-degree sexual
assault statute], AS 11.41.434 [the first-
degree sexual abuse of a minor statute], or a
similar law of another jurisdiction[.]
Holden noted that his offense was
committed before Alaskas current criminal
code took effect. That is, he was not
prosecuted or convicted under AS 11.41.410,
but rather under the now-repealed former AS
11.15.160 (assault with intent to kill or
commit rape or robbery).1 For this reason,
Holden argued that his offense did not
qualify as an aggravated sex offense within
the statutory definition just quoted.
On July 28, 2005, the Deputy
Commissioner of Public Safety issued a
written decision rejecting Holdens argument
and affirming the Departments initial
determination that Holdens offense was an
aggravated sex offense for purposes of the
registration act. In essence, the Deputy
Commissioner concluded that even though the
definition of aggravated sex offense listed
only two Alaska criminal statutes
(AS 11.41.100 and AS 11.41.434), the
definition actually applied to all persons
convicted of violating any Alaska criminal
statute if the persons underlying conduct was
similar to the conduct proscribed by either
AS 11.41.100 or AS 11.41.434.
Twenty days later, Holden appealed
the Commissioners decision to the superior
court. See AS 22.10.020(d)-(e) and Alaska
Appellate Rule 601(b), which authorize the
superior court to hear appeals from the final
decisions of administrative agencies.
While Holdens appeal to the
superior court was pending, the Alaska
Legislature amended the definition of
aggravated sex offense. See SLA 2006, ch.
14, 8. The 2006 amendment added the
following language to AS 12.63.100(1)(C):
a crime, or an attempt ... to commit a crime,
under AS 11.41.410 [the first-degree sexual
assault statute], AS 11.41.434 [the first-
degree sexual abuse of a minor statute], or a
similar law of another jurisdiction or a
similar provision under a former law of this
state[.]
In other words, the legislature amended the
statute to make the definition cover people
in Holdens situation.
In May 2006, following the
enactment of this amended definition of
aggravated sex offense, the superior court
issued its decision in Holdens administrative
appeal. Based on the recent amendment to the
statute, the superior ruled that Holdens
issue on appeal was now moot. In other
words, the court concluded that it did not
matter whether the statute, as formerly
written, might not have applied to Holden
because the statute as currently written
clearly did apply to him. On this basis, the
superior court affirmed the Departments
decision.
In addition, the superior court
denied Holdens request for court-appointed
counsel to help him prosecute the
administrative appeal.
Following these two adverse rulings
(the ruling that Holdens claim was moot, and
the denial of his request for an attorney),
Holden appealed the superior courts final
decision to the Alaska Supreme Court. See
AS 22.05.010(c) and Alaska Appellate Rule
202(a), which specify that the supreme court
is the proper appellate court to hear appeals
from the final decisions of the superior
court in administrative appeals.
Holdens appeal was docketed in the
supreme court as File No. S-12389. However,
shortly after Holdens appeal was docketed,
the State filed a motion to transfer his
appeal to this Court.
In its motion, the State argued
that this Court (rather than the supreme
court) had jurisdiction over Holdens appeal.
To support this jurisdictional argument, the
State relied on this Courts decision in Beltz
v. State, Alaska App. Memorandum Opinion
No. 5079 (June 14, 2006), 2006 WL 1627913.
In Beltz, this Court ruled that we
had jurisdiction to resolve a question
concerning the application of the Sex
Offender Registration Act that was raised in
the context of a criminal prosecution, even
though we acknowledged that sex offender
registration is a civil regulatory matter
rather than a criminal punishment. 2006 WL
1627913 at *1-2 (lead opinion) & *3-5
(Mannheimer, J., concurring).
Based on this Courts decision in
Beltz, the State took the position that the
supreme court was not the proper court to
hear Holdens appeal of the superior courts
decision in this case, and that Holdens
appeal should be transferred to this Court.
Holden opposed the States motion, but he was
representing himself and he was obviously at
a disadvantage when trying to respond to the
States fairly technical argument. The States
motion was granted by a single justice of the
supreme court, and Holdens case was
transferred to this Court.
When Holdens case was sent to our
Central Staff for screening and judicial
assignment, the staff attorney who reviewed
Holdens case perceived the jurisdictional
problem and brought it to our attention. We
then ordered the parties to file supplemental
briefs on this jurisdictional question.
Holden did not respond to our order, but the
State filed a six-page brief on this issue.
In its brief, the State has backed
away from its earlier position that this
Court clearly is the court to hear Holdens
appeal. Instead, the State acknowledges that
there are reasons to believe that Holdens
appeal should be decided by the supreme
court. The State suggests, however, that it
would be better to have a sole appellate
court decide all issues relating to the sex
offender registration laws. For this reason,
the State asks us to issue an opinion or
order identifying which appellate court this
Court or the Alaska Supreme Court should
handle these legal duties.
As we explain in the next section
of this opinion, the States proposal (to have
one appellate court decide all issues
relating to sex offender registration) is
inconsistent with Alaska law. The
jurisdiction of our states two appellate
courts is not defined by the types of legal
issues presented in an appeal. Rather, the
jurisdiction of the two appellate courts is
defined by the type of proceeding that gives
rise to the appeal. For this reason, the
supreme court sometimes has jurisdiction over
appeals where the primary issue is criminal,
and this Court sometimes has jurisdiction
over appeals where the primary issue is
civil. This, in a nutshell, is why both
appellate courts have in the past decided
questions regarding Alaskas sex offender
registration laws, and why both appellate
courts will continue to decide questions
concerning these laws.
Why we lack jurisdiction to decide Holdens appeal
Holden is appealing the final decision
rendered by the superior court in an
administrative appeal. The pertinent Alaska
statutes and appellate rules specify that such
appeals must be taken to the supreme court.
AS 22.05.010(c) declares that [a] decision of
the superior court on an appeal from an administrative
agency decision may be appealed to the supreme court as
a matter of right. Alaska Appellate Rule 202(a)
contains the corollary that [a]n appeal may be taken to
the supreme court from a final judgment entered by the
superior court ... in the circumstances specified in
AS 22.05.010.
Both this statute and this rule use the word
may. But the statute and the rule are permissive only
in the sense that it is up to the parties to decide
whether to pursue an appeal. Once a litigant decides
to appeal the superior courts decision, Alaska law does
not give the litigant a choice as to whether the
supreme court or this Court will hear the appeal.
Moreover, we appellate courts have no choice in this
matter either. Instead, the provisions of AS 22.05 and
AS 22.07 specify whether the appeal will be heard by
the supreme court or by this Court.
AS 22.05.010 declares that, even though the
Alaska Supreme Court retains final appellate authority
in all litigation conducted in the courts of this
state, superior court litigants are not entitled to
choose whether to file their appeals in the supreme
court as opposed to the court of appeals. Rather, for
all cases within the jurisdiction of the court of
appeals, litigants are obliged to file their appeals in
the court of appeals, and in all other cases, litigants
are obliged to file their appeals in the supreme court.
Subsection (a) of AS 22.05.010 states that
litigants have only one appeal as a matter of right
from an action or proceeding commenced in ... the
superior court. And subsection (b) of the statute
declares that litigants have a right to pursue an
appeal in the supreme court only in those actions and
proceedings from which there is no right of appeal to
the court of appeals under AS 22.07.020 ... .
In other words, a litigants appeal will be
heard by this Court and not by the supreme court if,
under AS 22.07.020, the litigant has a right of appeal
to this Court. In all other cases (that is, in all
instances where a litigant has no right of appeal to
this Court under AS 22.07.020), the litigants appeal
will be heard by the supreme court and not by this
Court.
When the legislature created this Court, the
legislature declared in AS 22.07.020(a) that we would
have appellate jurisdiction over certain specified
types of superior court litigation. In particular, AS
22.07.020(a)(1) states that this Court has jurisdiction
over all actions and proceedings commenced in the
superior court that involve criminal prosecution,
post-conviction relief, juvenile delinquency (including
waiver of juvenile jurisdiction under AS 47.12.100),
extradition, habeas corpus, probation and parole, and
bail. For present purposes, the most important aspect
of our jurisdictional statute is that it describes our
jurisdiction in terms of the types of litigation that
might give rise to an appeal, rather than in terms of
the types of legal issues that we might have to decide.
From time to time, the types of litigation
listed in AS 22.07.020(a) will give rise to appeals
(and petitions) which present issues that might
normally be considered civil.
For instance, in Martin v. State, 797 P.2d
1209 (Alaska App. 1990), the issue was whether this
Court had jurisdiction to hear the defendants appeal of
an order holding him in civil contempt for failing to
furnish handwriting exemplars to the state troopers
(pursuant to a search warrant authorizing the taking of
these exemplars). The State argued that we had no
jurisdiction to hear the defendants appeal because the
contempt action was civil rather than criminal. Id. at
1216-17. But this Court gave a broad construction to
the phrase involving ... criminal prosecution. We held
that, because the civil contempt action arose out of a
criminal prosecution, and because judicial efficiency
[would] be greatly promoted if this Court heard the
appeal, our acceptance of jurisdiction was consistent
with the legislative intent [behind] AS 22.07.020. Id.
at 1217.
Similarly, in Weidner v. State, 764 P.2d 717,
719-21 (Alaska App. 1988), this Court confirmed its
jurisdiction to hear the appeal of an attorney who was
subjected to civil fines for disobedience to court
orders during a criminal trial.
Our decisions in Martin and Weidner can be
viewed as examples of the rule identified by Judge
Singleton in his concurrence in Webber v. Webber, 706
P.2d 329 (Alaska App. 1985): that when a criminal case
involves civil or quasi-civil supplemental or ancillary
proceedings, these proceedings are really part and
parcel of the underlying criminal proceeding. Webber,
706 P.2d at 333. This conclusion is borne out by our
decision in R.I. v. State, 894 P.2d 683 (Alaska App.
1995).
The appellant in R.I. was adjudicated a
juvenile delinquent. As one of the conditions of his
probation, he was ordered to make restitution in the
amount of approximately $3000. Later, because of
various violations of his probation (including his
failure to make restitution), the superior court
revoked R.I.s probation and institutionalized him. In
addition, because it appeared likely that R.I. would
remain institutionalized until the courts juvenile
jurisdiction over him ended, the superior court entered
a civil judgement against R.I. (in favor of the victims
of his crimes) for the amount of the unpaid
restitution.2
On appeal, we held that the superior court
lacked authority to convert the restitution order into
a civil judgement. We acknowledged that the superior
court acted for the purpose of ensur[ing] that R.I.
eventually paid the restitution, even if payment did
not occur until after R.I.s release from juvenile
supervision.3 However, we held that in attempting to
achieve this goal, the [superior] court acted beyond
its legal powers.4
Our decision in R.I. confirms the legal
principle recognized in Martin, Weidner, and Webber:
the principle that this Court has jurisdiction to
decide appeals or petitions that raise issues that
might be viewed as civil, so long as these issues arise
from the types of litigation listed in our
jurisdictional statute.
On the other hand, the fact that the matter
being litigated involves a question of criminal
procedure, or hinges on the interpretation of a
criminal statute, or arises as a consequence of a
criminal conviction, does not necessarily mean that
this Court has jurisdiction over the appeal. Indeed,
the Alaska Supreme Court has repeatedly adjudicated
issues that are primarily criminal when those issues
arose in the types of legal proceedings that are
directly appealable to the supreme court.
Here are several examples from the last three
years: State of Alaska & Alaska Office of Victims
Rights v. Murtagh et al., 169 P.3d 602 (Alaska 2007)
(construing and adjudicating the constitutionality of
various provisions of the Victims Rights Act governing
defense attorneys and defense investigators); Gabrielle
v. Dept. of Public Safety, 158 P.3d 813 (Alaska 2007)
(interpreting various statutes that limit or prohibit a
felons possession of a concealable firearm); Hartman v.
Division of Motor Vehicles, 152 P.3d 1118 (Alaska 2007)
(adjudicating the lawfulness of an investigative stop);
Cooper v. Cooper, 144 P.3d 451 (Alaska 2006)
(interpreting the elements of the offenses of stalking
and violating a protective order); Crawford v. Kemp,
139 P.3d 1249 (Alaska 2006) (adjudicating the
lawfulness of an arrest for disorderly conduct); Saltz
v. Division of Motor Vehicles, 126 P.3d 133 (Alaska
2005) (adjudicating the lawfulness of an investigative
stop for driving under the influence).
In fact, on July 25th of this year, the
Alaska Supreme Court issued an opinion deciding the
question of whether the Sex Offender Registration Act
imposes a punishment for purposes of the Alaska
Constitutions ex post facto clause (Article I, Section
15). See Doe v. State, __ P.3d __, Alaska Opinion No.
6290 (July 25, 2008).
In Doe, the supreme court held that sex
offender registration is punishment for ex post facto
purposes and, thus, the registration requirement can
not lawfully be imposed on a defendant whose offense
predates the enactment of the registration law.
Because the supreme courts decision in Doe appears to
require reversal of the superior courts underlying
decision in this case, we will speak more of the Doe
decision later. For present purposes, however, Doe is
important because it provides yet another illustration
that the Alaska Supreme Court will decide criminal
issues if those issues are presented in the types of
civil litigation that are appealable to that court.
We addressed this division-of-jurisdiction
issue in Higgins v. Briggs, 876 P.2d 539 (Alaska App.
1994). Higgins involved a prisoner who sought judicial
review of the Department of Corrections decision to
take away his good time credit for alleged misbehavior.
After the superior court denied relief, Higgins filed
an appeal in this Court. We ruled that the underlying
superior court litigation should have been filed as an
administrative appeal. Id. at 542. We further ruled
that, because the underlying superior court litigation
should have been treated as an administrative appeal,
Higginss appeal of the superior courts decision should
have been taken to the supreme court under
AS 22.05.010(c). Thus, we concluded that we did not
have jurisdiction to hear Higginss appeal of the
superior courts decision. Id. at 543-44.
It is true that this Court has previously
decided issues involving the proper interpretation and
application of Alaskas sex offender registration laws.
See Beltz v. State, Alaska App. Memorandum Opinion
No. 5079 (June 14, 2006), 2006 WL 1627913; State v.
Otness, 986 P.2d 890 (Alaska App. 1999). It is also
true that the duty to register as a sex offender arises
as a consequence of a criminal conviction.
But the reason this Court had jurisdiction
over the appeals in Beltz and in Otness is not that sex
offender registration is quasi-criminal, or that the
requirement of sex offender registration arises as a
consequence of a criminal conviction. Rather, our
jurisdiction in Beltz and Otness was based on the fact
that both cases were appeals from orders entered in
criminal prosecutions. If these same legal issues had
arisen in appeals of final decisions issued by the
superior court in administrative appeals (or in any
other type of civil litigation where the parties have a
right of appeal to the supreme court), this Court would
have lacked jurisdiction over the appeals despite the
quasi-criminal nature of the issues raised.
In Holdens case, the decision being appealed
is the final decision issued by the superior court in
an administrative appeal. AS 22.05.010(c) declares
that this type of appeal must be pursued in the supreme
court, and Higgins v. Briggs squarely holds that this
Court has no jurisdiction to hear this type of appeal.
Nevertheless, when a litigant has a right of
appeal (as Holden does in this case), and the problem
is that the appeal has been filed in the wrong
appellate court (i.e., filed in the appellate court
that lacks jurisdiction over the appeal), AS
22.05.015(c) declares that the appeal [must] not be
dismissed. Rather, [t]he case shall be transferred to
the proper court.
Accordingly, we TRANSFER Holdens appeal to
the Alaska Supreme Court. The Clerk of the Appellate
Courts is directed to re-open File No. S-12389.
The decision to transfer this case to the
supreme court would normally be our final word in an
appeal. However, we would be remiss if we did not
alert the parties to the fact that the supreme courts
recent decision in Doe i.e., the decision that sex
offender registration is a punishment for purposes of
our state constitutions ex post facto clause means
that the superior courts decision in Holdens case was
wrong.
As explained above, Holden argued to the
superior court that his offense (assault with intent to
commit rape under Alaskas former criminal code) was not
covered by the definition of aggravated sex offense
codified in the former version of AS 12.63.100(1). The
superior court ruled that Holdens claim was moot
because, while Holdens litigation was pending, the
legislature amended the definition of aggravated sex
offense so that it now applies to offenses committed
under Alaskas former criminal code.
The underlying legal premise of the superior
courts ruling is that the new version of the statute
(the version enacted while Holden was litigating in the
superior court) can lawfully be applied to Holden. But
in Doe, the Alaska Supreme Court declared that this
premise is wrong. The supreme court held that sex
offender registration is a form of punishment for ex
post facto purposes, and thus the registration
requirement can not be imposed on defendants whose
sexual offense pre-dates the enactment of the law.
Because the Sex Offender Registration Act was
first enacted in 1994,5 and because Holdens offense was
committed in the mid-1970s,6 it appears that Holden is
exempt from the registration requirement. And
certainly, with respect to the precise issue litigated
in the superior court in this case, Holden is exempt
from the expanded definition of aggravated sex offense
that the legislature enacted after Holden initiated his
administrative appeal.
Because of this, the parties may wish to
discuss whether this case can be resolved in the
superior court without the necessity of an appeal to
the supreme court.
_______________________________
1 Former AS 11.15.160 provided: A person who assaults another
with intent to kill, or to commit rape or robbery upon the
person assaulted, is punishable by imprisonment in the
penitentiary for not more than 15 years nor less than one
year.
2 R.I., 894 P.2d at 684.
3 894 P.2d at 685.
4 Id.
5 See SLA 1994, ch. 41, 4.
6 See Holden v. State, 602 P.2d 452 (Alaska 1979).
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