| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lewis v. State, Dept. of Corrections (07/28/2006) sp-6030
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RHODA LEWIS, | ) |
| ) Supreme Court No. S- 11892 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-03-7063 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF CORRECTIONS, | ) No. 6030 - July 28, 2006 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Ted Stepovich, Law Office of
Ted Stepovich, Anchorage, for Appellant.
Marilyn J. Kamm, Assistant Attorney General,
and David W. M rquez, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Rhoda Lewis is a state prisoner in the custody of the
Alaska Department of Corrections (DOC). We consider here whether
she was denied due process when DOC rejected her request to be
examined by a physician of her choosing for the purpose of
gathering evidence to support her application for executive
clemency. Because Lewis did not make out any showing of a
medical condition that might have entitled her to be considered
for executive clemency, we conclude that DOC did not deny her due
process and therefore affirm the judgment of the superior court.
II. FACTS AND PROCEEDINGS
Rhoda Lewis was convicted of second-degree murder in
1997 and was sentenced to serve sixty years in prison with
fifteen years suspended. Her sentence was upheld on appeal.1
She will not be eligible for parole until 2011. She is
incarcerated at Hiland Mountain Correctional Center, a facility
administered by the Alaska Department of Corrections (DOC).
In September 2002 Lewis applied for executive clemency,
citing two reasons: She claimed that her crime was an aberration
and will never happen again, and that her health was poor and
appears to be worsening. She stated that she feared that she
would not survive until 2011. She also noted her good behavior
and work ethic in prison. In support of her application, Lewis
stated that she was submitting letters from individuals and
medical records from Providence Medical Center, Alaska Native
Medical Center, Fairbanks Clinic, and DOC. The appellate record
does not contain any of those materials.
In December 2002 the Alaska Board of Parole informed
Lewis that she was not eligible for executive clemency. The
board explained that it will not consider an application for
executive clemency before an applicant is eligible for parole
except upon a substantial showing of innocence or other
exceptional circumstance arising since trial.
In January 2003 Lewis began preparing another
application for executive clemency. In February her attorney
wrote to the Hiland Mountain superintendent requesting that Lewis
be examined by a doctor of her own choice. The letter explained
that the examination was essential for a number of reasons,
including ascertaining whether another application for executive
clemency was appropriate. Assistant Attorney General John Bodick
responded and denied Lewiss request to be seen by an outside
doctor because [t]he Department has a long-standing policy and
practice of denying requests for outside medical examinations.
Bodick noted that neither Lewiss attorney nor DOC medical staff
had indicated anything unusual or extraordinary about Lewiss
medical condition warranting a deviation from standard practice.
On March 7 Lewiss attorney wrote to Bodick complaining
that Lewis had yet to receive her results from blood samples
taken two months prior. Bodick responded on April 21 and
informed Lewiss attorney that a DOC physician had counseled Lewis
regarding the results sometime between March 7 and April 21.
According to Bodick, DOC medical staff had informed Bodick that
Lewis was generally in good health and that it appears there are
no legitimate medical grounds for her to be released from prison
through the clemency process.
In the meantime, on March 12 Lewis filed a grievance
and asked to see a doctor of her own choice at her own cost, both
to support her clemency application and because of her distrust
of DOC medical care providers. The grievance coordinator
immediately rejected the petition, noting that Lewiss attorneys
letter to Bodick had removed the grievance from DOCs
jurisdiction.
On April 30 Lewis filed a superior court complaint
against the state, requesting declaratory judgments resolving the
question regarding right of access to independent medical opinion
evidence and regarding the adequacy of the DOCs grievance
procedure.
In November 2004 both parties moved for summary
judgment. The state argued that the superior court lacked
jurisdiction because Lewis had not alleged a constitutional
violation and because Lewiss claim regarding the adequacy of the
grievance procedure was moot. Lewis denied that she was
asserting a right to medical care; instead, she explained that
she was arguing that she had exercised her First Amendment right
to apply for clemency and was being denied the right to gather
evidence to support that application. The state also argued that
Lewiss claims regarding the clemency process were not ripe
because she did not have a legal right to apply for clemency
until 2011. Finally, the state argued that because prisoners do
not have a liberty interest in clemency, there can be no due
process violation associated with the clemency process.
On January 28, 2005 the superior court granted summary
judgment to the state. The superior court decided that Lewiss
claim was ripe and that the court had jurisdiction to hear the
case. As to the parties substantive arguments, the court decided
that no constitutional violation occurred in the grievance
procedure when Lewiss request for an independent medical exam was
denied. And the court decided that because Lewis does not have a
cognizable liberty interest in clemency, she cannot have a due
process claim with respect to clemency procedures. The court
consequently granted summary judgment to the state on both counts
in Lewiss complaint.
In an order on reconsideration, the superior court
modified the reasoning of its previous decision. The court noted
that it had overlooked directly controlling precedent in which
the United States Supreme Court stated that some minimal
procedural safeguards apply to clemency proceedings.2 But the
superior court concluded that the states denial of Lewiss request
to see a private doctor to support her application for clemency
was not an arbitrary or unconscionable denial of access to the
clemency process that the State has established.
Lewis appeals, arguing that she has a due process right
to gather evidence to support her application for executive
clemency.
III. DISCUSSION
A. Standard of Review
We review a superior courts grant of summary judgment
de novo, drawing all factual inferences in favor of, and viewing
the facts in the light most favorable to, the non-prevailing
party.3 We review questions of law, including constitutional
questions, using our independent judgment and will adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.4
B. The Clemency Issue Is Ripe for Decision.
The superior court concluded that Lewiss claim is ripe
because there is an actual controversy about whether Lewis has an
exceptional health condition that might warrant executive
clemency prior to parole eligibility.
The state argues that Lewiss clemency application will
not be ripe until Lewiss 2011 applications for discretionary
parole and executive clemency are denied. But this argument
conflicts with the parole boards own eligibility criteria. The
boards informational booklet for prospective clemency applicants,
Executive Clemency in Alaska, states:
Generally, applications for executive
clemency will not be considered until after
the person has served some portion of the
sentence. Applications will not be
considered until the person has reached his
or her parole period (where applicable) or
has been denied parole. Applications may be
considered earlier only upon a substantial
showing of innocence or some other
exceptional circumstance arising since trial,
which clearly justifies a possible extension
of executive clemency.
(Emphasis added.) Therefore an application presenting an
exceptional circumstance may be considered before the applicant
has reached her parole period. Lewis argued in the superior
court and argues here on appeal that she hopes to prove an
exceptional circumstance making clemency appropriate before she
becomes eligible for parole. Because it is at least theoretically
possible that a prisoner could suffer from an exceptional health
condition warranting executive clemency before she reaches parole
eligibility, the superior court did not err in concluding that
Lewiss constitutional claim is ripe.5
C. DOC Did Not Violate Lewiss Procedural Due Process
Rights by Denying Her Request To Be Examined by a
Private Doctor.
In its order on reconsideration, the superior court
decided that the states denial of Lewiss request to be examined
by a private doctor did not violate due process. Both parties
acknowledge on appeal that the states clemency process must
comport with some amount of due process. But the parties
disagree about the extent of due process safeguards in clemency
proceedings. Lewis argues that she has a right under the Alaska
Constitution to be seen by a doctor of her choosing to gather
evidence to support her application for clemency. The state
argues that the current clemency process provides adequate due
process protections and that the state is not constitutionally
required to allow a prisoner to see a doctor of her choosing to
support her application for clemency.
We agree with the superior court that some due process
protections apply to clemency proceedings.6 Because the state
allows prisoners to apply for executive clemency, it must provide
applicants with some procedural due process during the clemency
process.7 If a prisoner relies on a particular basis recognized
by the state as a potential ground for clemency, the prisoner
must have a fair opportunity to make a factual showing that the
ground has been satisfied.
We apply the test outlined by the United States Supreme
Court in Mathews v. Eldridge8 in deciding whether Lewis had a
fair opportunity to demonstrate that her medical condition
satisfies the boards clemency eligibility criteria.9 This test
takes these factors into account:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
[probable] value, if any, of additional or
substitute procedural safeguards; and
finally, the Governments interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.[10]
We assume here both that Lewis has a significant
interest in being able to generate information needed to support
her clemency application and that the state has a legitimate
interest in structuring prisoners access to medical attention.
We also assume that the states decision not to grant Lewis access
to a doctor of her own choice could have the effect of preventing
her from generating information supporting her application for
clemency, thereby denying her access to potentially important
relief. But Lewis has not demonstrated any real-world value of
gaining access to a private doctor. Lewis did not attempt to
rely on any readily available information to make out a showing
suggesting that she has a medical condition that might justify
clemency. She did not describe to DOC or to the superior court
any specific medical problem that might qualify as an exceptional
circumstance warranting clemency. Although she stated in an
affidavit that she had been experiencing extreme fatigue
symptoms, she never explained to DOC or to the superior court
whether or how those symptoms indicated an exceptional
circumstance warranting clemency. She did not point to prison
medical records, pre-incarceration medical records, or any
opinion of prison medical staff, lay witnesses, or outside
doctors suggesting she has a specific medical condition
potentially justifying clemency.11 Absent a showing of some
medical condition that would justify further inquiry in order to
make out an exceptional circumstance clemency application, and
that might justify examination by a medical professional of the
prisoners own choosing, there is no due process denial.
Lewis argues that two cases from the United States
Court of Appeals for the Eighth Circuit Noel v. Norris12 and
Young v. Hayes13 support her argument that she has a right to be
seen by a private doctor to gather evidence to support her
clemency application. In Noel, a prisoner under sentence of
death claimed that the State of Arkansas violated his due process
rights by interfering with his ability to prepare and present his
case for executive clemency.14 The state refused to allow Noel to
undergo a particular kind of brain-scan procedure to prove his
assertion that his brain damage ought to be considered on the
question of whether he deserved clemency.15 But the state had
allowed Noel to present a four-hundred page record supporting his
clemency application; that record included some evidence of Noels
brain damage.16 The Eighth Circuit held that the states process
was not so arbitrary as to be unconstitutional and that the state
did not prohibit Noel from using the procedure it had
established.17 Like Noel, Lewis was not precluded from presenting
evidence of her medical condition, but was not allowed to
investigate her heath situation with an outside medical
examination.18 Noel therefore does not advance Lewiss argument.
In Young, the Circuit Attorney for the City of St.
Louis threatened to fire one of the lawyers under her supervision
if that lawyer gave the governor information supporting a death-
row inmates clemency petition.19 The Eighth Circuit held that the
Circuit Attorneys conduct was fundamentally unfair and that it
unconscionably interfere[d] with a process that the State itself
has created.20 Lewiss case is distinguishable from Young because
there is no indication any state official intentionally tried to
derail Lewiss efforts to apply for executive clemency.21
Lewis also cites Hilbers v. Municipality of Anchorage22
and Kendall v. State, Division of Corrections23 to support her
argument that the Alaska Constitution requires DOC to allow a
prisoner to be examined by the doctor of her own choosing to
support an application for clemency. Neither case supports
Lewiss argument. In Hilbers, we discussed the due process
protections that extend to the issuance of business licenses for
massage parlors, not applications for clemency.24 And in Kendall,
a medical malpractice case, we affirmed the superior courts grant
of summary judgment to the state in part because plaintiff
Kendall presented no expert affidavits and did not show, based on
the evidence that was presented, that a reasonably arguable case
of medical negligence existed.25 We therefore applied the
prevailing summary judgment standard; we did not create a right
for inmates like Lewis to secure medical evidence to support a
claim for clemency.
Because Lewis failed to point to any plausible
indications that she had a medical condition that, if confirmed
by a physician, might entitle her to clemency,26 DOC did not
violate any procedural due process protections that applied to
Lewis when she sought executive clemency.27
D. The Board Is Not Operating a Clemency Application
Process Outside Its Statutory Authority.
Lewis argues that the board does not have authority to
establish clemency eligibility criteria.
The Alaska Constitution gives the governor broad
authority to grant executive clemency. Article III, section 21
of the Alaska Constitution states in part: Subject to procedure
prescribed by law, the governor may grant pardons, commutations,
and reprieves, and may suspend and remit fines and forfeitures.
Two statutory provisions discuss the governors clemency power.
Alaska Statute 33.20.070 restates the constitutional provision.
Alaska Statute 33.20.080(a) provides that the governor may refer
applications for executive clemency to the board of parole and
that the board must investigate and report to the governor on
each clemency case.
The parties briefs and the record both suggest that the
governor has decided to refer all applications to the board and
that the board has established clemency qualification criteria.
Lewis argues that the board has no authority to establish those
criteria. But that authority is inherent in the governors
executive clemency power.28 The board has not acted outside its
authority here.
IV. CONCLUSION
Because we agree with the superior court that DOCs
denial of Lewiss request to be examined by a private doctor did
not violate due process under the circumstances, we AFFIRM.
_______________________________
1 Lewis v. State, Mem. Op. & J. No. 4021 (Alaska App.,
March 24, 1999), 1999 WL 158951.
2 See Ohio Adult Parole Auth. v. Woodward, 523 U.S. 272,
289 (1998) (emphasis in original).
3 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
4 Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006).
5 See AS 22.10.020(g) (In case of an actual controversy
in the state, the superior court, upon the filing of an
appropriate pleading, may declare the rights and legal relations
of an interested party seeking the declaration, whether or not
further relief is or could be sought.); Brause v. State, Dept of
Heath & Soc. Servs., 21 P.3d 357, 360 (Alaska 2001) ([R]ipeness
turns on the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.
(internal quotation marks omitted)).
6 See Woodward, 523 U.S. at 289 (OConnor, J.,
concurring); see also INS v. St. Cyr, 533 U.S. 289, 345 (2001)
(The furthest our cases have gone in imposing due process
requirements upon analogous exercises of Executive discretion is
. . . requir[ing] minimal procedural safeguards for death-penalty
clemency proceedings, to prevent them from becoming so capricious
as to involve a state official flipp[ing] a coin to determine
whether to grant clemency. ) (quoting Woodward, 523 U.S. at 289);
Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (holding due
process not violated where inmate was not allowed to undergo
special brain scan, but was able to present four-hundred page
record that included evidence of brain damage in support of his
clemency application); Gilreath v. State Bd. of Pardons &
Paroles, 273 F.3d 932, 934 (11th Cir. 2001) (holding absence of
one member of clemency board from oral hearing and mere
appearance of impropriety did not violate due process in clemency
context); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000)
(holding due process was violated where state official
intentionally tried to sabotage inmates clemency application).
7 See Matson v. State, Commercial Fisheries Entry Commn,
785 P.2d 1200, 1206 (Alaska 1990) ([A] state-created right may in
some circumstances constitute a sufficient entitlement to trigger
the right to procedures under the due process clause.) (citing
Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981)).
8 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
9 See State, Dept of Health & Soc. Servs. v. Valley Hosp.
Assn, 116 P.3d 580, 583 (Alaska 2005); see also Brandal v. State,
Commercial Fisheries Entry Commn, 128 P.3d 732, 738 (Alaska
2006).
10 Valley Hosp. Assn, 116 P.3d at 583 (quoting Whitesides
v. State, Dept of Pub. Safety, Div. of Motor Vehicles, 20 P.3d
1130, 1135 (Alaska 2001)). Valley Hospital Assn and Brandal
quoted Mathews v. Eldridge but inadvertently substituted
probative for probable. See Brandal, 128 P.3d at 738; Valley
Hosp. Assn, 116 P.3d at 583.
11 Lewiss original executive clemency application stated
that she was being treated for various medical problems,
including arthritis, lower back pain, stomach problems,
diverticulitis, hiatal hernia, and cataracts. The clemency
application asserted that she was providing medical records
demonstrating those conditions. But Lewis did not submit those
or any other medical records to DOC when she requested access to
an outside doctor and she did not submit them to the superior
court as part of her action for declaratory relief. The
appellate record therefore contains no medical records. She
therefore failed to demonstrate in this case how DOCs denial of
access to her own physician potentially interfered with her
pursuit of clemency.
12 Noel v. Norris, 336 F.3d 648 (8th Cir. 2003).
13 Young v. Hayes, 218 F.3d 850 (8th Cir. 2000).
14 Noel, 336 F.3d at 649.
15 Id.
16 Id.
17 Id.
18 See id.
19 Young, 218 F.3d at 851, 853.
20 Id. at 853.
21 See id.
22 Hilbers v. Municipality of Anchorage, 611 P.2d 31, 36
(Alaska 1980).
23 Kendall v. State, Div. of Corr., 692 P.2d 953, 955
(Alaska 1984).
24 See Hilbers, 611 P.2d at 38-39.
25 Kendall, 692 P.2d at 955.
26 Our holding does not require a threshold showing of a
condition warranting executive clemency. Such a requirement
would impose too high a barrier to access to private medical
diagnosis and care. But to trigger the protections of the Alaska
Constitution, an inmate must, at the very least, point to
evidence indicating that she might have a condition that might
entitle her to clemency.
27 Lewis argues for the first time in her reply brief that
DOCs actions infringe on her First Amendment right to petition
the government for redress of grievances. We do not consider
arguments raised for the first time in a reply brief. Reust v.
Alaska Petroleum Contractors, Inc., 127 P.3d 807, 819 (Alaska
2005).
28 Lewis also argues that a prisoner could write directly
to the governor and that the governor has the authority to grant
or deny the request, independently investigate the request, or
ask the board to investigate the request. That may be true, but
the governors authority to deviate from the procedure he has
established is consistent with his inherent powers and with AS
33.20.080(a), which states that the governor may refer clemency
applications to the board.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
