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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. State, Dept. of Corrections (8/26/2016) sp-7122

Johnson v. State, Dept. of Corrections (8/26/2016) sp-7122

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                      

WILLIAM  JOHNSON,                                               )  

                                                                )          Supreme  Court  No.  S-15965  

                                Appellant,                      )  


                                                                )          Superior Court No. 3AN-15-05765 CI  

           v.                                                   )  


                                                                )         O P I N I O N  


STATE OF ALASKA,                                                )  


DEPARTMENT OF                                                                                                      

                                                                )         No. 7122 -           August 26, 2016  

CORRECTIONS,                                                    )  


                                Appellee.                       )  




                        ppeal from the Superior Court of the State of Alaska, Third  


                     Judicial District, Anchorage, Eric A. Aarseth, Judge.  


                     Appearances:               Jon  Buchholdt,  Buchholdt  Law  Offices,  


                     Anchorage,  for  Appellant.                       John  K.  Bodick,  Assistant  


                     Attorney  General,  Anchorage,  and  Craig  W.  Richards,  


                     Attorney General, Juneau, for Appellee.  


                     Before:          Stowers,  Chief  Justice,  Maassen,  and  Bolger,  


                     Justices.  [Fabe and Winfree, Justices, not participating.]  


                     MAASSEN, Justice.  



                     In a prison discipline proceeding, a prisoner was found guilty of possessing  


contraband.  He appealed his punishment to a discipline committee, which affirmed the  


decision.   Then, represented by counsel, the prisoner appealed to the superior court,  


alleging that the Department of Corrections had deprived him of due process. The court  

----------------------- Page 2-----------------------

granted the State's unopposed motion to dismiss the appeal on the ground that the                                                                                                                                                                                                                                                                                            

prisoner's statement of points on appeal was deficient.                                                                                                                                                                                              When the prisoner moved for                                                                                               

reconsideration but made no attempt to remedy the deficiency, the superior court denied                                                                                                                                                                                                                                                                        

the prisoner's motion and awarded the State attorney's fees.                                                                                                                                                                                        

                                                           The   prisoner   appeals   the   dismissal   and   the   award   of   attorney's   fees.   

Finding no error, we affirm.                                                                 

II.                           FACTS AND PROCEEDINGS                                           

                                                           William Johnson was a prisoner at the Goose Creek Correctional Center.                                                                                                     

In December 2014 he was working at the Point Mackenzie work farm when a corrections                                                                                                                                                                                                                                                    

officer found contraband - synthetic cannabinoids (Spice) - inside a cabinet to which                                                                                                                                                                                                                                                                             

only Johnson and one other person had access.                                                                                                                                                                          Another officer wrote up an incident                                                                                             

report detailing the first officer's discovery.                                                                                                    

                                                           A third officer presided over a disciplinary hearing less than two weeks                                                                                                                                                                                                                             

later.       Johnson    was    found    to    have    violated    22    Alaska    Administrative    Code  

 (AAC) 05.400(c)(7) (2016), which prohibits the "possession, use, or introduction of                                                                                                                                                                                                                                                                                              

contraband[]    .    .    .    which    directly    threatens    the    security    of    the    facility,    such  

as . . . unauthorized drugs."                                                                                                The decision includes little other information, but it does                                                                                                                                                                                

describe Johnson's statement:                                                                                                         "Found in same spot as other stuff . . . Did not know it                                                                                                                                                            

was there . . . Just did job, did not pay attention to anything else . . . No dirty UA in 17                                                                                                                                                                                                                                                                                     

yrs of incarceration."                                                                        1  


                                                           Johnson filed an internal appeal, which was denied. The decision on appeal  


 states simply: "Appeal denied - Concur with guilty finding and affirm sanctions to run  


concurrent with case # 14-1953."  

                              1                            The ellipses appear in the decision itself.  


                                                                                                                                                                                         -2-                                                                                                                                                                            7122  

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                    Johnson next filed a notice of appeal to the superior court.  His statement  


of  points  on  appeal  read:                 "The  Department  of  Corrections  violated  appellant's  


fundamental constitutional rights to due process in the prison disciplinary process and  


the violation prejudiced appellant's right to a fair adjudication."  The State moved to  


dismiss the appeal, asserting that the points on appeal were deficient when measured  


against the requirements of the Alaska Appellate Rules and AS 33.30.295(a), a statute  


specifically addressing lawsuits brought by prisoners.  Though represented by counsel,  


Johnson did not oppose the State's motion to dismiss.  The superior court granted the  


motion, citing the statute and Alaska Appellate Rule 204(e).  


                    Nearly a month later Johnson tardily moved for reconsideration, arguing  


that the assertion in his points on appeal that his "fundamental constitutional rights to due  


process" had been violated "in the prison disciplinary process" was sufficiently specific  


to survive dismissal.  The superior court denied the motion, again citing the appellate  


rule and statute and observing that Johnson's "statement of points on appeal does not  


allege 'specific facts' that would establish a violation of his constitutional rights."  The  


court  also  rejected  Johnson's  argument  that  dismissal  of  his  appeal  violated  his  


constitutional right to access the courts, noting that Johnson had "the opportunity to seek  


review of his disciplinary proceeding" in superior court but simply "did not avail himself  


of this opportunity."  The court noted that Johnson "never explained [in his motion for  


reconsideration] why he did not oppose" the State's motion to dismiss and that he  


thereafter "made no attempt to comply with AS 33.30.295(a) and Appellate Rule 204(e)"  


even after his appeal had been dismissed on the basis of those provisions.  


                    The State had earlier moved for an award of $225 in attorney's fees for one  


hour of work.  Johnson did not oppose the motion, and the court granted it the same day  


it denied Johnson's motion for reconsideration.  


                                                                -3-                                                         7122

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                                      Johnson appeals both the superior court's dismissal of his appeal and its                                                                                                                 

award of attorney's fees to the State.                                                 

III.               STANDARDS OF REVIEW                                      

                                      This case requires us to interpret AS 33.30.295.                                                                                         "The interpretation of a                                         

 statute is a question of law to which we apply our independent judgment, interpreting the                                                                                                                                                 

 statute according to reason, practicality, and common sense, considering the meaning of                                                                                                                                                      

the statute's language, its legislative history, and its purpose."                                                                                                            2  


                                      "We  review  a  trial  court's  award  of  attorney's  fees  for  an  abuse  of  



discretion."                             Awarding  attorney's  fees  is  an  abuse  of  discretion  if  it  is  "arbitrary,  



capricious, manifestly unreasonable,orimproperlymotivated."                                                                                                                      But "wereviewdenovo  



whether the [superior] court applied the law correctly in awarding attorney's fees." 

                   2                 Barber v. State, Dep't of Corr.                                                          , 314 P.3d 58, 62 (Alaska 2013) (quoting                                                     

 Cutler v. Kodiak Island Borough                                                             , 290 P.3d 415, 417 (Alaska 2012)).                                             

                   3                 Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000).  


                   4                 Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008) (quoting Kellis v.  


 Crites, 20 P.3d 1112, 1113 (Alaska 2001)); see also Gold Dust Mines, Inc. v. Little  


Squaw Gold Mining Co., 299 P.3d 148, 157 (Alaska 2012) ("We will not reverse an  


 [attorney's fees] award unless it is 'manifestly unreasonable.' " (quoting Welcome v.  


Jennings, 780 P.2d 1039, 1043 (Alaska 1989))).  


                   5                 Lake  & Peninsula  Borough  Assembly  v.  Oberlatz,  329  P.3d  214,  221  


 (Alaska 2014) (quoting Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005)).  


                                                                                                                      -4-                                                                                                            7122

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IV.           DISCUSSION  


                            Johnson  argues that  the  superior  court  erred  as  a  matter  of  law  in  its  



interpretation of Alaska Appellate Rule 602(c)(1)(A)                                                             and AS 33.30.295.  Because the  


superior court correctly interpreted the statute as requiring the dismissal of Johnson's  




appeal, we need not separately decide whether the appeal satisfied the Appellate Rules. 


              A.            Johnson's Points On Appeal Failed To Satisfy AS 33.30.295(a).  


                            The superior court held that Johnson's statement of points on appeal failed  


to       meet           a      statutory              requirement                   specific            to       prisoner              litigation.                  Alaska  


Statute 33.30.295(a) provides:  "A prisoner may obtain judicial review by the superior  


court of a final disciplinary decision by the department  only if the prisoner alleges  


specific facts establishing a violation of the prisoner's fundamental constitutional rights  


that prejudiced the prisoner's right to a fair adjudication."  (Emphasis added.)  Johnson  


argues that his statement of points on appeal - alleging that the State "violated [his]  


fundamental constitutional rights to due process in the prison disciplinary process" and  

              6             The superior court cited Appellate Rule 204(e) in its order dismissing the                                                                       

appeal   and  its   order   denying   reconsideration,   apparently   accepting   the   authority  

suggested by the State in its motion to dismiss.                                                 The rule governing statements of points                               

on appeal in appeals to the superior court is Appellate Rule 602(c)(1)(A).  The parties   

both address the correct rule on this appeal.                                                

              7             Johnson does argue that AS 33.30.295(a) is unconstitutional as applied  


becauseit effectively amends AppellateRule602despitethelegislature'snoncompliance  


with Leege v. Martin,  379 P.2d 447, 451 (Alaska 1963), in which we held "that a  


legislative enactment will not be effective to change court rules of practice and procedure  


unless the bill specifically states that its purpose is to effect such a change."  But the  


legislation                  at        issue,            H.B.            201,           did          state          such            a       purpose:                      "An  


Act .  .  .  amending  .  .  .  Alaska Rules of Appellate Procedure 204 .  .  .  [and] 602."  


Committee  Substitute  for  House  Bill  (C.S.H.B.)  201,  19th  Leg.,  1st  Sess.  (1995).  


Johnson points us to no other alleged defects.  


                                                                                       -5-                                                                               7122

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thereby "prejudiced [his] right to a fair adjudication" - was sufficient to provide notice                                                                                                                                                                                 

to the court and the State of the basis of his appeal when viewed in conjunction with the                                                                                                                                                                                            

administrative    record.       He    argues    that    the    superior    court's    interpretation    of  

AS 33.30.295(a) "effectively requires [him] to submit his entire brief on appeal in a                                                                                                                                                                                                      

document stylized 'Notice of Points on Appeal.' "                                                                                                                     The State counters that interpreting                                              

Johnson's generic statement as satisfying the requirements of the statute would "foster[]                                                                                                                                                                          

the practice of filing 'form' notices of appeal,"whichwould"result[]in meritless appeals                                                                                                                                                                               

because it [would] allow[] the notice of appeal and statement of points on appeal to be                                                                                                                                                                                                

filed without first examining the appellate record for legitimate errors."                                                                                                                                                                          We find the                     

 State's argument most consistent with the statute's language and purpose.                                                                                                                                              

                                             "To establish the meaning of a statute, we examine both its text and its                                                                                                                                                                  



                                       We give statutory language a " 'reasonable or common sense construction,  


consonant with the objectives of the legislature.'   The intent of the legislature must  



govern  and  the policies and purposes  of the statute should  not be defeated."                                                                                                                                                                                                   We  


"presume that the legislature intended every word, sentence, or provision of a statute to  



have some purpose, force, and effect, and that no words or provisions are superfluous." 


                                            The plain language of AS 33.30.295(a) shows that it is intended to address  


the prisoner's initial filing - the one that initiates the appeal - and not a later-filed  

                      8                     Marathon  Oil  Co.  v.  State,  Dep't  of  Nat.  Res.,  254  P.3d  1078,  1083  (Alaska  


                      9                     Mech.  Contractors of Alaska,  Inc.  v. State,  Dep't of  Pub.  Safety,  91  P.3d  

240,   248   (Alaska   2004)   (quoting   Mack   v.   State,   900   P.2d    1202,    1205   (Alaska  


                      10                    Nelson  v.  Municipality   of  Anchorage ,  267  P.3d   636,   642   (Alaska  2011)   

(quoting  Mech.  Contractors  of  Alaska,  Inc.,  91  P.3d  at  248).   

                                                                                                                                           -6-                                                                                                                                 7122

----------------------- Page 7-----------------------


appellate brief.                                             The statute's beginning words signal plainly that it is establishing                                                                                                                        

preconditions to judicial review:                                                                                       "A prisoner may obtain judicial review . . .                                                                                                              only  


if   . . . ."                                                                                                                                                                                                                                                                    

                                          A judge who is reading a prisoner's appellate brief has already granted  


"judicial  review"  and  is  in  the  course  of  providing  it.                                                                                                                                                          And  the  remainder  of  


AS  33.30.295(a)  is  also  concerned  with  the  initiation  of  the  appeal;  it  discusses  


commencing the appeal by "filing a notice of appeal and other required documents in  



accordance with AS 09.19,"                                                                               preparing the record, and transmitting the record.  These  


steps are laid out sequentially: first the appeal is commenced, then the record is prepared  

                        11                    Alaska Statute 33.30.295(a) provides in full:                                                                                                

                                              A prisoner may obtain judicial review by the superior court   

                                               of a final disciplinary decision by the department only if the                                                                                                                                       

                                              prisoner alleges specific facts establishing a violation of the                                                                                            

                                              prisoner's fundamental constitutional rights that prejudiced                                                                                                               

                                              the prisoner's right to a fair adjudication.                                                                                                   An appeal shall be                                       

                                               commenced by the prisoner filing a notice of appeal and other                                                                                                                                 

                                              required documents in accordance with AS 09.19 and the                                                                                                                                               

                                               applicable rules of court governing administrative appeals                                                                                                                          

                                              that do not conflict with AS 09.19.                                                                                        Unless the appeal is not                                                  

                                               accepted for filing under AS 09.19.010 or is dismissed under                                                                                                                                

                                              AS 09.19.020, a record of the proceedings shall be prepared                                                                                                                       

                                              by   the   department,   consisting   of   the   original   papers   and  

                                               exhibits submitted in the disciplinary process and a cassette                                                                                                                 

                                              tape of the disciplinary hearing. The record shall be prepared                                                                                                                    

                                               and transmitted in accordance with the applicable rules of                                                                                                                                             

                                               court governing administrative appeals.                                                                      

                        12                    AS 33.30.295(a) (emphasis added).  


                        13                    AS  09.19.010  addresses  prisoners'  responsibility  for  filing  fees  and  


provides for exemptions based on prisoners' personal finances; AS 09.19.020 requires  


courts to dismiss prisoner lawsuits if the prisoner is found to have made a material  


misstatement in seeking the financial exemption.  


                                                                                                                                                  -7-                                                                                                                                       7122

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and transmitted.                               It would thus be inconsistent with both the subject matter and the                                                                                                              

chronology of subsection .295(a) if we were to interpret the "specific facts" requirement                                                                                                               

of the statute's first line as one the prisoner can wait to satisfy until after his appeal has                                                                                                                                 

reached the briefing stage.                                              

                                    This reading of the statute is consistent with the legislative purpose.                                                                                                                 The  

statute was part of a bill Governor                                                                 Tony   Knowles transmitted to                                                        the legislature to                       

"address[] many                                of the problems arising                                             from prisoner                            litigation" and                           "ensure that   

offenders focus their attention on their rehabilitation and reformation, rather than on                                                                                                                                          


endless   'recreational'   litigation."                                                                                                                                                                           

                                                                                                     The  section  of  the  bill  that  eventually  became  


AS 33.30.295(a) was one of several provisions "designed to reduce the number of  



frivolous suits filed by prisoners that involve the [S]tate."                                                                                                       In support of the bill, the  


deputy attorney general explained the governor's directive that prisoner litigation, which  



was consistently on the increase, be targeted for cost-cutting.                                                                                                               We conclude that the  


statute was intended to prevent a bare-bones statement of points on appeal like Johnson's  


from triggering a briefing schedule, the time and expense required of both parties to  


generate their appellate briefs, and the judicial investment of the time necessary for  


review and decision.  

                  14                 1995 House Journal 488-91 (Governor's February 27, 1995 transmittal                                                                                   

letter for House Bill (H.B.) 201, 19th Leg., 1st Sess. (1995)).                                                                               

                  15                Id.  at 489.   See also Barber v. State, Dep't of Corr., 314 P.3d 58, 66  


(Alaska  2013)  ("[T]he  [S]tate  may  have  a  legitimate  interest  in  reducing  frivolous  


prisoner litigation.").  


                  16                Statement of Laurie Otto, Deputy Att'y Gen. at 1:19:55-1:25:00 Tape 95- 


29, Hearing on H.B. 201, Before the House State Affairs Comm., 19th Leg., 1st Sess.  


(Mar. 18, 1995).  


                                                                                                                 -8-                                                                                                       7122

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                                                                              Compliance with AS 33.30.295(a)'s requirement that a prisoner "allege[]                                                                                                                                                                                                                                                                                                             

 specific facts establishing a violation of the prisoner's fundamental constitutional rights"                                                                                                                                                                                                                                                                                                                                                                                 

would not have imposed a particularly heavy burden on Johnson; he explains them                                                                                                                                                                                                                                                                                                                                                                                                       

tersely in his brief on this appeal, asserting that the prison discipline committee failed "to                                                                                                                                                                                                                                                                                                                                                                                                      

determine what facts alleged in                                                                                                                                                                     the report supported the allegations of disciplinary                                                                                                                                                                                     

violations" and "failed to explain why the writer of the written report was not called upon                                                                                                                                                                                                                                                                                                                                                                                             

to testify at the hearing even though Johnson requested his presence."                                                                                                                                                                                                                                                                                                                                                    No mention of   

either of these grounds for review was made in his vaguely worded statement of points                                                                                                                                                                                                                                                                                                                                                                                            

on   appeal.     He   further   contends  that   his   alleged   "due   process   violations   were  

ascertainable from the record" and from the decisional documents attached to his notice                                                                                                                                                                                                                                                                                                                                                                                          

of   appeal.     But   this   argument   shifts   to   the   judge   the   initial   burden   of   identifying  

appealable issues in the decisions and the record below - a result the legislature sought                                                                                                                                                                                                                                                                                                                                                                                     

to avoid when it enacted AS 33.30.295(a).                                                                                                                             

                                                                              Finally, we note that the statute and the appellate rules, when properly                                                                                                                                                                                                                                                                                                            

applied, are unlikely to result in the dismissal of meritorious appeals. The State's motion                                                                                                                                                                                                                                                                                                                                                                                 

to dismiss could have been timely opposed, but it was not. Appellate Rule 602(c)(1)(A)                                                                                                                                                                                                                                                                                                                                                    

 specifically allows appellants to supplement their points on appeal on motion and "for                                                                                                                                                                                                          

cause," but Johnson never sought to supplement or clarify his points on appeal.                                                                                                                                                                                                                                                                                                                                                                                                          The  

 superior court's order denying reconsideration implied that the court would have been                                                                                                                                                                                                                                                                                                                                                                   

receptive to an earnest attempt to comply with the "specific facts" requirement of the                                                                                                                                                                                                                                                                                                                                                                                                            


 statute,   as   we   would   expect   the   court   to   be.                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                        But  even  in  his  tardy  motion  for  

                                       17                                    We emphasize that we are not concerned in this case with the superior                                                                                                                                                                                                                                                                                                                 

court's obligations to pro se litigants, as Johnson was represented by counsel.                                                                                                                                                                                                                                                                                                                                                                                                           See  

 Collins v. Arctic Builders                                                                                                                           , 957 P.2d 980, 982 (Alaska 1998) ("[W]e conclude that the                                                                                                                                                                                                                                                                                  

 superior court must inform a pro se litigant of the specific defects in his notice of appeal                                                                                                                                                                                                                                                                                                                                                                                  


                                                                                                                                                                                                                                                    -9-                                                                                                                                                                                                                                   7122

----------------------- Page 10-----------------------

reconsideration Johnson failed to take the obvious step of informing the superior court                                                                                                                                                               

of the factual basis for his appeal, instead arguing doggedly that the court was required                                                                                                                                                   

to view what he had already filed as legally sufficient.  In short, although Johnson lost                                                                                                                                                                  

his appeal because his statement of points on appeal was deficient, he had procedural                                                                                                                                                

opportunities to correct the deficiency but inexplicably failed to take them.                                                                                                                                                      18  


                    B.                  Johnson Waived Any Objection To The Attorney's Fees Award.  


                                        Johnson argues that thesuperiorcourterredwhen it awarded attorney's fees  


to the State as prevailing party.                                                                         Though represented by counsel, Johnson filed no  


opposition to the State's fees motion in the superior court, did not mention the subject  


in his untimely motion for reconsideration of the dismissal order, and did not ask the  



and give him an opportunity to remedy those defects.").  

                    18                  Johnson also argues that the superior court                                                                                                 was obliged to review his                                               

allegations of due process violations, regardless of the requirements of AS 33.30.295(a),                                                                                                                                    

because of cases addressing prisoners' rights of access to the courts.  He cites Barber v.  


State, Department ofCorrections                                                                     for theproposition that"[i]ffundamental                                                                                 constitutional  

rights are alleged to be abridged in disciplinary proceedings, it would be the duty of the                                                                                                                                                                   

court to inquire into the allegations." 314 P.3d 58, 64 (Alaska 2013) (alternation in  


original) (quoting McGinnis v. Stevens, 543 P.2d 1221, 1236 n.45 (Alaska 1975)).  But  


Johnson had access to the courts; his appeal was dismissed because of his failure to  


comply with a reasonable procedural requirement intended to manage how the courts  


accommodate that access.  


                                                                                                                             -10-                                                                                                                      7122

----------------------- Page 11-----------------------


court to reconsider the fees award after it was made. The argument was clearly waived.                                                                                                                                                                                                                                                       

V.                        CONCLUSION  


                                                   We AFFIRM the judgment of the superior court.  

                          19                       See Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell                                                                                                                                                                                    , 215 P.3d   

 1064, 1083 n.88 (Alaska 2009) ("Issues that are not raised in the superior court are                                                                                                                                                                                                                                         

waived and                                     cannot be asserted                                                            on   appeal as grounds                                                                     for  overturning a judgment."                                          

(quoting  Still v. Cunningham                                                                                   , 94 P.3d 1104, 1111 (Alaska 2004))).                                                                              

                                                                                                                                                              -11-                                                                                                                                                       7122

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