      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, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA


MICHAEL LEE RAE,           )
                           )                            Supreme Court No. S-16006
              Appellant,   )
                           )                            Superior Court No. 3SW-15-00003 CI
    v.                     )
                           )                            OPINION
STATE OF ALASKA,           )
DEPARTMENT OF CORRECTIONS, )                            No. 7209 – October 27, 2017
                           )

              Appellee.    )

                           )


              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Seward, Carl Bauman, Judge.

              Appearances: Michael Lee Rae, pro se, Anchorage,
              Appellant. Matthias Cicotte, Assistant Attorney General,
              Anchorage, and Jahna Lindemuth, Attorney General, Juneau,
              for Appellee.

              Before: Stowers, Chief Justice, Maassen, Bolger, and
              Carney, Justices. [Winfree, Justice, not participating.]

              MAASSEN, Justice.

I.    INTRODUCTION
              A prisoner filed a complaint against the Department of Corrections alleging
that he was held illegally and demanding his release. The superior court dismissed the
complaint for failing to state a claim upon which relief could be granted. The prisoner
appeals. Because we agree that the complaint failed to state a cognizable claim, we
affirm the dismissal.
II.    FACTS AND PROCEEDINGS
              Michael Rae is a prisoner in the custody of Alaska’s Department of
Corrections (DOC). In January 2015 he filed a complaint (labeled a “petition”) in the
superior court alleging that DOC lacked the constitutional authority to hold him. In an
attached motion for expedited consideration he asserted that he had been “subjected to
numerous forms of cruel and unusual punishments” including solitary confinement and
impediments to his ability to conduct legal research.
              In June 2015 the superior court sua sponte dismissed the complaint with
prejudice because Rae failed to “advance any cognizable or discernable claim.” Rae
filed both a motion for reconsideration and a notice of his intent to seek a default,
following up with a 75-page application for a default judgment. The superior court
denied reconsideration, concluding that “Rae’s main point of contention is that [DOC]
has no legal authority to hold him or exist at all” and that the “argument is without merit
and the relief sought is not available to Rae.”
              Rae appeals.
III.   STANDARDS OF REVIEW
              “We review a motion to dismiss de novo, construing the complaint liberally
and accepting as true all factual allegations.”1 We “exercise our independent judgment
in interpreting court rules,”2 and we review questions of constitutional law and statutory


       1
            Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012) (citing Caudle v.
Mendel, 994 P.2d 372, 374 (Alaska 1999)).
       2
              Shea v. State, Dep’t of Admin., Div. of Ret. &Benefits, 204 P.3d 1023, 1026
                                                                             (continued...)

                                                                                     7209
                                            -2­
interpretation de novo.3 But we “review the adequacy of the superior court’s assistance
to a pro se litigant for abuse of discretion.”4
IV.	   DISCUSSION
       A.	    The Superior Court Did Not Err When It Dismissed Rae’s Complaint
              For Failure To State A Claim.
              A “complaint should not be dismissed ‘unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim’ that would entitle him to
some form of relief, even if the plaintiff requests a type of relief he is not entitled to
obtain.”5 This stringent standard for dismissal was met in this case.
              Rae’s complaint posed five “question[s]of law.” First, Rae asked whether
DOC is covered by the Alaska Administrative Procedure Act, to which he provided the
answer: “No.” Second, he asked the court to clarify whether DOC’s creation by
executive order was constitutional. Third, he asked whether DOC’s creation by
executive order violated the separation of powers doctrine, to which he answered “yes.”
Fourth, Rae asserted that all the laws and regulations authorizing DOC’s custody over
him were “ex post facto.” His last question appears to be an amalgam of the first four:
He concludes that his detention by DOC violates the constitution, the separation of
powers doctrine, and generally “the rights provided by ‘we’ the people.” The answers
to none of these “questions of law” depended on the resolution of disputed issues of fact.


       2
       (...continued)
(Alaska 2009).
       3
              State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001).
       4
              Sarah D. v. John D., 352 P.3d 419, 428 n.24 (Alaska 2015).
       5
             Larson v. State, Dep’t of Corr., 284 P.3d 1, 6 (Alaska 2012) (quoting
Guerrero v. Alaska Hous. Fin. Corp, 6 P.3d 250, 254 (Alaska 2000)).

                                                                                    7209
                                             -3­
And the superior court could, and did, properly determine that the answers to them
would not provide Rae the relief he wanted: his immediate release from DOC custody.
             Rae argues on appeal that AS 33.30.051 and other statutory provisions
regarding prisoners in DOC custody are unconstitutional “ex post facto” laws.6 This
argument fails for at least two reasons. First, the statutes Rae cites do not define any
criminal conduct,7 and second, they were enacted well before Rae committed the offenses
for which he was imprisoned.8 Rae also relies on AS 09.50.310, allowing the attorney
general to bring an action against a person or persons for unlawfully usurping a public
office. But the statute cannot reasonably be construed to authorize a suit against the
existence of an entire state agency; besides, it does not purport to grant a private cause
of action.
             We find no merit in any of Rae’s other arguments questioning the validity
of DOC’s existence. Rae cites the fact that DOC is not covered by the Alaska
Administrative Procedures Act, but he does not explain why having different procedural



       6
             See Doe v. State, 189 P.3d 999, 1003 (Alaska 2008) (explaining that
provisions of the Alaska and United States Constitutions “bar the legislature from
enacting any law that ‘punishes as a crime an act previously committed, which was
innocent when done; which makes more burdensome the punishment for a crime, after
its commission; or which deprives one charged with a crime of any defense available
according to law at the time when the act was committed.’ ” (quoting State v. Anthony,
816 P.2d 1377, 1378 (Alaska 1991))).
       7
             AS 33.30.051(a) states in full: “A person convicted of an offense against
the state shall be committed to the custody of the commissioner for the term of
imprisonment that the court directs.” See also AS 33.30.011 (outlining duties of DOC
commissioner); AS 33.30.021 (authorizing DOC to adopt regulations); AS 33.30.031
(authorizing DOC to delegate to private prison contractors).
       8
             See ch. 88, § 6, SLA 1986 (also adding AS 33.30.011, .021, and .031).

                                                                                    7209
                                           -4­
rules makes DOC an illegal entity.9 He points to the criminal-administration provisions
of the Territorial Organic Act and Statehood Act and claims that they preclude later
changes in the law like the creation of DOC, and he argues that article I, section 12 of
the Alaska Constitution lays out a specific plan for “criminal administration” that also
conflicts with DOC’s creation. But article I, section 12 provides broad goals for criminal
administration; it does not purport to mandate the minutiae of its execution.10 And the
Constitution itself, in article III, section 23, clearly empowers the executive to adjust the
organization of its agencies.11



       9
              Cf. Dep’t of Corr. v. Kraus, 759 P.2d 539, 540 & n.2 (Alaska 1988)
(reviewing prison disciplinary proceedings even though “[i]t is clear that review of
prison disciplinary proceedings is not covered by the Alaska Administrative Procedure
Act”).
       10
              Article I, section 12 of the Alaska Constitution provides in full:
              Excessive bail shall not be required, nor excessive fines
              imposed, nor cruel and unusual punishments inflicted.
              Criminal administration shall be based upon the following:
              the need for protecting the public, community condemnation
              of the offender, the rights of victims of crimes, restitution
              from the offender, and the principle of reformation.
       11
             Article III, section 23 of the Alaska Constitution states, in part: “The
governor may make changes in the organization of the executive branch or in the
assignment of functions among its units which he considers necessary for efficient
administration. Where these changes require the force of law, they shall be set forth in
executive orders.”
              See AS 24.08.210 (stating that “[a]n executive order proposing a change
in the executive branch and requiring the force of law under art[icle] III, [section] 23”
must be presented to both houses of the legislature, and will become effective “[u]nless
disapproved by a special concurrent resolution introduced in either house, concurred in
by a majority of the members in joint session”).

                                                                                       7209
                                             -5­
               The superior court was correct to decide that Rae, in posing his five
“questions of law” that could be readily answered in DOC’s favor, failed to state a claim
on which relief could be granted.
       B.      The Court Did Not Err Procedurally.
               Rae argues that the superior court erred procedurally when it dismissed the
complaint. First, he appears to argue that the language of Alaska Civil Rule 7(a) —
“[t]here shall be a complaint and an answer” — means that an action cannot be dismissed
before an answer is filed. But Alaska Civil Rule 12(b) expressly allows a defendant to
short-cut the process by moving to dismiss before filing an answer. And while a court
should be very hesitant to dismiss a case on its own motion before the answer is filed,
we have never held that a sua sponte dismissal is impermissible where it is obvious the
complaint is fatally deficient.
               Rae also faults the superior court for failing to cite case law, statutes, or
regulations when it dismissed his complaint. But findings are not required for dismissal
orders, as they are for rulings following a bench trial or deciding a motion for injunctive
relief.12 And because we review dismissal orders de novo,13 we are not reliant on the
superior court’s rationale, as we often are when reviewing discretionary or fact-based
decisions.14




       12
               Alaska R. Civ. P. 52(a).
       13
               Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012).
       14
             See, e.g., Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001) (“The core
purpose of the rule [requiring superior court to find facts specifically in bench trial], then,
is to enable the appellate court to conduct a meaningful review of the trial court’s
decision-making process.”).

                                                                                         7209
                                             -6­
               Rae appears to argue that DOC’s failure to file an answer entitled him to
a default judgment. The court dismissed the case on June 1, 2015. Rae filed his “intent”
to file a default judgment on June 8 and the actual application several weeks later. There
can be no right to a default judgment after the case has been properly dismissed.15
       C.	     Dismissal Did Not Violate Rae’s Right To A Jury Trial Or His Right
               To Petition The Government.
               Rae asserts that the court violated his right to a trial. The right depends on
the existence of a factual issue to be decided by a trier of fact. When the superior court
properly concluded, as a matter of law, that Rae’s complaint failed to state a claim for
relief under Civil Rule 12(b)(6), nothing remained to be tried. The court did not violate
Rae’s right to a trial.16
               Rae also asserts a violation of his right to petition the government for a
redress of grievances, but that right is concerned with a person’s access to the



       15
              Moreover, under Alaska Civil Rule 55(g) “[n]o default judgment shall be
entered against the state or an officer or agency thereof unless the claimant establishes
the claim or right to relief by evidence satisfactory to the court.” Given that the court
dismissed the complaint for failure to state a claim, Rae’s complaint certainly failed to
provide such satisfactory evidence.
       16
                See Foondle v. O’Brien, 346 P.3d 970, 976 n.36 (Alaska 2015) (“We have
held that the summary judgment standard, limiting summary disposition to cases in
which there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law, ‘is adequate to prevent the violation of a party’s due process
right or right to a jury trial,’ and the same is true of the standards for dismissal if properly
applied.” (quoting Capolicchio v. Levy, 194 P.3d 373, 380-81 (Alaska 2008))); see also
Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997) (“The district court’s dismissal
of Smith’s complaint under [federal] Rule 12(b)(6) did not violate Smith’s right to a jury
trial under the Seventh Amendment: When Smith failed to plead any facts that would
overcome the defendants’ complete defenses, there were no facts to be ‘tried’ by a
jury.”).

                                                                                          7209
                                              -7­
courthouse; what comes afterwards is more properly analyzed for its compliance with
due process.17 And “the standards for dismissal if properly applied” are “adequate to
prevent the violation of a party’s due process right.”18 In sum, we see no violation of
Rae’s constitutional rights in the superior court’s dismissal of his complaint.19
      D.	    The Superior Court Did Not Abuse Its Discretion By Failing To
             Provide Substantive Legal Assistance To Rae.
             Finally, Rae asserts that the superior court erred when it dismissed his
complaint because, as a self-represented litigant, his burden of complying with the usual
procedural rules was “relaxed” and because the court should have advised him of defects
in his complaint before dismissing the action sua sponte. We disagree.
             It is well established that “[t]he pleadings of pro se litigants ‘should be held
to less stringent standards than those of lawyers.’ ”20 As we noted in Breck, “the trial
judge should inform a pro se litigant of the proper procedure for the action he or she is
obviously attempting to accomplish.”21 But judges must be careful to maintain their




      17
              Carol Rice Andrews, A Right of Access to Court Under the Petition Clause
of the First Amendment: Defining the Right, 60 OHIO ST. L.J. 557, 646–47 (1999) (“The
Petition Clause . . . protects the initial filing of the complaint, and the Due Process
Clause, and its somewhat lower ‘reasonableness’ standard of protection, steps in from
that point forward.” (footnotes and citations omitted)).
      18	
             Foondle, 346 P.3d at 976 n.36.
      19
             Rae also argues that he was denied “equal treatment and protections of [the]
laws,” but he fails to expand on this argument.
      20
            Rathke v. Corr. Corp. of Am., 153 P.3d 303, 308-09 (Alaska 2007) (quoting
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).
      21
             Breck, 745 P.2d at 75.

                                                                                       7209
                                            -8­
impartiality; they therefore may not act as advocates for pro se litigants on substantive
legal issues.22
              Here, the superior court observed that Rae’s complaint “consists primarily
of incoherent citations to cases, administrative code provisions, executive orders, treaties,
statutes, the Uniform Commercial Code, and other legal authorities and sources.” The
court found that “[t]he only decipherable portions are allegations that the Department of
Corrections is an illegal entity without authority to hold Rae,” which as a claim for relief
was “without merit.”
              What Rae needed to correct these obvious deficiencies was not procedural
advice. He filed a complaint which — though mislabeled as a petition — presented the
questions he wanted the court to decide, and the court accepted the filing as a complaint
and considered the claims on their merits. Even if Rae could have benefited from advice
on how to shape his grievances into cognizable legal claims that would survive dismissal
— which we doubt23 — that is not help the court could give; it would have crossed the


       22
              McLaren v. McLaren, 268 P.3d 323, 334 (Alaska 2012) (“Requiring the
superior court to inform pro se litigants of all the relevant substantive law would put a
trial judge in the precarious position of acting as attorney for an unrepresented party,
which is exactly what we [have] sought to avoid . . . .”); Tracy v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 279 P.3d 613, 617 n.14 (Alaska 2012)
(“[R]equiring a judge ‘to instruct a pro se litigant as to each step in litigating a claim
would compromise the court’s impartiality in deciding the case by forcing the judge to
act as an advocate for one side.’ ” (quoting Bauman v. State, Div. of Family & Youth
Servs., 768 P.2d 1097, 1099 (Alaska 1989))).
       23
             Given the baselessness of Rae’s central claim — that DOC is an illegal
entity without the authority to hold him — we do not see that any amount of substantive
amendment could have saved Rae’s complaint from dismissal. See Tracy, 279 P.3d at
618 (holding that the superior court did not abuse its discretion by not “advising the
                                                                         (continued...)

                                                                                       7209
                                            -9­
line between procedural assistance and substantive legal advice, and it would have cast
the judge as Rae’s advocate.24
              We conclude that the superior court did not abuse its discretion in failing
to give Rae advice on how to avoid the dismissal of his complaint.
V.     CONCLUSION
              We AFFIRM the judgment of the superior court.




       23
         (...continued)
[litigants] that they might amend” where the claim would still be dismissed after any
potential amendment).
       24
               We note that Rae does allege restrictions on his law library access, the
seizure of his legal papers, and unlawful punitive segregation. But as best we can tell
from his briefing, these allegations are provided only as background for the “questions
of law” he asked the superior court to answer — all having to do with the legality of
DOC’s existence. To the extent claims were not readily discernible from Rae’s
complaint, the superior court was not required to consider them. See Rathke, 153 P.3d
at 309 (“[W]here the essence of a pro se litigant’s argument is ‘easily discerned’ from
his briefs, the trial court should consider the pro se litigant’s argument, provided that the
applicable law is well established and the opposing party would not be prejudiced by the
court’s consideration of the issue.” (quoting Wilkerson v. State, Dep’t of Health &Social
Servs., Div. of Family & Youth Servs., 993 P.2d 1018, 1022 (Alaska 1999))).

                                                                                       7209
                                            -10­
