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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
| MAX C. SCHWAB, | ) |
| ) Court of Appeals No. A-9958 | |
| Appellant, | ) Trial Court No. 3PA-04-3265 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2197 November 28, 2008 |
| ) | |
Appeal from the
District Court, Third Judicial District,
Palmer, Gregory Heath, Judge.
Appearances: Steven M. Wells, Steven M.
Wells, LLC, and Gayle J. Brown, Anchorage,
for the Appellant. Blair M. Christensen,
Assistant Attorney General, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In May 2006, Max C. Schwab was convicted of second-
degree indecent exposure.1 When Schwab was released from prison,
the Department of Public Safety notified him that he was obliged
to register as a sex offender. In March 2007, Schwab filed a
motion in his district court criminal case, asking the district
court to amend his sentence to specify that he would not have to
register as a sex offender.2
District Court Judge Gregory Heath denied Schwabs
motion to amend the sentence. But when Schwab indicated that he
intended to appeal the courts decision, Judge Heath ordered a
stay of Schwabs sex offender registration requirement. In
essence, Judge Heath issued a restraining order directing the
Department of Public Safety not to enforce Schwabs registration
requirement until Schwabs appeal was resolved.
The underlying controversy in this case has nothing to
do with Schwabs sentence. As we explained in Herreid v. State3:
[T]he registration and reporting
requirements imposed by the [Sex Offender
Registration] Act are not part of a
defendants sentence. Peterson v. State, 988
P.2d 109, 115 (Alaska App.1999). A
sentencing court has no power to exempt a
defendant from the requirements of the Act
nor, for that matter, does a sentencing
court have the power to impose sex offender
registration and reporting on a defendant
whose crime does not qualify as a sex
offense under AS 12.63.100(1) or (6).[4]
Thus, nothing that the district court might do to amend Schwabs
sentence for indecent exposure would either affirm or negate the
validity of the Departments decision to require Schwab to
register as a sex offender.
Schwabs underlying claim is a challenge to an
administrative decision of the Department of Public Safety. This
claim could not be raised in Schwabs criminal case. Nor would
the district court have had jurisdiction to consider this claim
even if Schwab had filed a civil lawsuit challenging the
Departments decision.5
Challenges to the decisions of administrative agencies
must be pursued by filing a civil action or appeal in the
superior court.6 For this reason, the district court had no
jurisdiction to rule on Schwabs claim no jurisdiction either to
grant or deny it. And for this same reason, the district court
had no authority to issue a stay that purported to exempt Schwab
from the duty to register as a sex offender pending resolution of
this appeal.
For these reasons, the two decisions of the district
court in this case the decision rejecting Schwabs request to be
exempted from sex offender registration and the decision
restraining the Department from enforcing its ruling pending the
resolution of this appeal are both VACATED. The district court
had no authority to make these decisions.
If Schwab wishes to challenge the Departments ruling
that he must register as a sex offender, he must seek relief in
the superior court.
_______________________________
1 AS 11.41.460(a).
2 It appears that both Schwab and the State mistakenly
believed his sentence contained a provision requiring Schwab to
register as a sex offender. In fact, the sentencing record and
the judgment are silent on this point.
3 69 P.3d 507 (Alaska App. 2003).
4 Id. at 508 (emphasis removed).
5 See AS 22.15.030-050 (defining the civil jurisdiction of
the district court).
6 See AS 22.10.020(d); Alaska Appellate Rule 601(b);
Higgins v. Briggs, 876 P.2d 539, 543-44 (Alaska App. 1994).
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