      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      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@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

WILLIAM G. OSBORNE,        )
                           )                            Supreme Court No. S-15218
          Appellant,       )
                           )                            Superior Court No. 3AN-13-05783 CI
    v.                     )
                           )                            OPINION
STATE OF ALASKA,           )
DEPARTMENT OF CORRECTIONS, )                            No. 6951 – September 5, 2014
                           )

          Appellee.        )

                           )


              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Michael Spaan, Judge.

              Appearances: William G. Osborne, pro se, Palmer, Appellant.
              John K. Bodick, Assistant Attorney General, Anchorage, and
              Michael C. Geraghty, Attorney General, Juneau, for
              Appellee.

              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              STOWERS, Justice.

I.    INTRODUCTION
              William Osborne unsuccessfully challenged the Department of Correction’s
(DOC) calculation of his sentence through DOC’s prisoner grievance process and then
filed an administrative appeal in superior court. The superior court dismissed for lack
of subject matter jurisdiction. We have previously held that the superior court does not
have jurisdiction to consider such an appeal: the superior court lacks statutory appellate
jurisdiction to review DOC grievance decisions, and an exception allowing the superior
court to review alleged constitutional violations does not apply because the prisoner
grievance process is not sufficiently adjudicative and does not produce a record capable
of review.1 We affirm the superior court’s dismissal of Osborne’s appeal.
II.      FACTS AND PROCEEDINGS
             William Osborne filed a prisoner grievance with DOC alleging that DOC
incorrectly computed his sentence following a parole revocation. He alleged that DOC
failed to credit time he spent in custody pending revocation proceedings. On the
recommendation of a DOC investigator, the acting superintendent of the prison denied
the grievance. Osborne appealed to the Director of Institutions, and a deputy director
denied his appeal. Osborne then filed a notice of administrative appeal in the superior
court.
             DOC moved to dismiss the administrative appeal. The superior court
granted DOC’s motion “on the ground that challenges to [DOC’s] time accounting
computations must be brought as applications for post-conviction relief pursuant to
Criminal Rule 35.1 and [DOC’s] grievance decisions are not adjudicative in nature and
cannot be reviewed by the superior court in an administrative appeal.” Osborne twice
moved for reconsideration, and the superior court denied both motions. In response to
Osborne’s argument that review was required because he had exhausted his
administrative remedies, the superior court concluded in its second order denying
reconsideration that whether Osborne exhausted administrative remedies was irrelevant
because the superior court lacked jurisdiction over Osborne’s appeal.




         1
             Welton v. State, Dep’t of Corr., 315 P.3d 1196, 1197-99 (Alaska 2014).

                                           -2-                                      6951
              Osborne filed a petition for hearing with this court. DOC moved to dismiss,
arguing that a petition for hearing was inappropriate because the superior court’s
decision was final. We denied DOC’s motion and converted Osborne’s petition to an
appeal, accepting the documents Osborne filed as his opening brief.2
III.   STANDARD OF REVIEW
              Whether the superior court has subject matter jurisdiction to hear an appeal
from an administrative decision is a question of law, which we review de novo.3
IV.    DISCUSSION
              Osborne argues that the superior court has jurisdiction to hear his appeal
because he is alleging a violation of his constitutional rights and the prisoner grievance
process is an adjudicative proceeding. Osborne further argues that the superior court
erred by concluding that whether he exhausted his remedies was irrelevant to the
question of jurisdiction. DOC responds that DOC grievance decisions are not reviewable
because the decisions do not result from adjudicative proceedings producing adequate
records for review. DOC is correct. Because the superior court does not have statutory
appellate jurisdiction over DOC grievance decisions, and because DOC grievance
proceedings are not sufficiently adjudicative and do not produce a record capable of
review, the superior court correctly concluded that it lacked subject matter jurisdiction.4


       2
            Osborne v. State, Dep’t of Corr., No. S-15218 (Alaska Supreme Court
Order, Nov. 1, 2013).
       3
            See Welton, 315 P.3d at 1197 (quoting Owen v. Matsumoto, 859 P.2d 1308,
1309 (Alaska 1993)); Nw. Med. Imaging, Inc. v. State, Dep’t of Revenue, 151 P.3d 434,
438 (Alaska 2006) (citing Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 925 P.2d 246,
248 (Alaska 1996)).
       4
             Osborne also suggests that, rather than dismissing, the superior court should
have granted a trial de novo or remanded to DOC to develop an adequate factual record.
                                                                            (continued...)

                                           -3-                                       6951

We note, however, that a prisoner may properly seek judicial review of a DOC sentence
calculation through an application for post-conviction relief.
      A.	    The Superior Court Lacks Jurisdiction To Hear Administrative
             Appeals From Prisoner Grievance Decisions.
             Osborne argues that the superior court had subject matter jurisdiction
because DOC prisoner grievance decisions are sufficiently adjudicative and are final
agency actions subject to appellate review in the superior court. This argument is
incorrect. We have clearly held that the superior court does not have jurisdiction to hear
appeals from DOC prisoner grievance decisions.5
             Under AS 22.10.020(d) the superior court has appellate jurisdiction “in all
matters appealed to it from a[n] . . . administrative agency when appeal is provided by
law.” Because no statute provides for appeal from DOC administrative decisions,
“AS 22.10.020(d) does not confer subject matter jurisdiction on the superior court to
review appeals from DOC decisions.”6 We have recognized one exception to this rule:


      4
        (...continued)
But in the cases Osborne cites to support this proposition the superior court clearly had
jurisdiction to consider the appeal. See State, Dep’t of Revenue v. Merriouns, 894 P.2d
623, 627 (Alaska 1995) (holding in Permanent Fund Dividend case that superior court
erred by granting trial de novo where the department’s factual record was not adequately
developed, and directing the superior court to remand to the department for factual
determinations); Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 998 (Alaska
1999) (observing that appellant could have requested a trial de novo in the superior court
in appeal from final administrative decision). Here, because the superior court lacked
jurisdiction, it had no power to remand or to grant a trial de novo. See Alaska Appellate
Rule 609 (“[T]he superior court may make such orders as are necessary and proper to aid
its appellate jurisdiction.” (Emphasis added.)).
      5
             Welton, 315 P.3d at 1197-99.
      6
             Id. at 1197 (citing Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1031
                                                                          (continued...)

                                           -4-	                                     6951

an administrative appeal from a DOC determination is appropriate where there is (1) an
alleged violation of a fundamental constitutional right in (2) an adjudicative proceeding
that (3) produces a record capable of appellate review.7
             In Welton v. State we held that DOC grievance proceedings are not
sufficiently adjudicative and affirmed the superior court’s dismissal of Welton’s appeal
for lack of subject matter jurisdiction.8 We cited our statement in Brandon v. State that:
             The essential elements of adjudication include adequate
             notice to persons to be bound by the adjudication, the parties’
             rights to present and rebut evidence and argument, a
             formulation of issues of law and fact in terms of specific
             parties and specific transactions, a rule of finality specifying
             the point in the proceeding when presentations end and a
             final decision is rendered, and any other procedural elements
             necessary for a conclusive determination of the matter in
             question.[9]
We concluded that DOC grievance proceedings lack several essential elements.10 They
do not: (1) include a “hearing or similar proceeding at which the parties [may] ‘present
and rebut evidence and argument’ ”; (2) provide an opportunity to examine witnesses;
or (3) “involve the ‘formulation of issues of law and fact.’ ”11




      6
       (...continued)
(Alaska 1997)).
      7
             Brandon, 938 P.2d at 1032-33 (citing Owen, 859 P.2d at 1310).
      8
             Welton, 315 P.3d at 1199.
      9
             Id. at 1198 (quoting Brandon, 938 P.2d at 1032-33).
      10
             Id.
      11
             Id. (quoting Brandon, 938 P.2d at 1032-33).

                                           -5-                                      6951

                The superior court does not have appellate jurisdiction under
AS 22.10.020(d) to hear administrative appeals from DOC grievance decisions. And
because prisoner grievance proceedings are not sufficiently adjudicative and do not
produce a record capable of appellate review, the exception allowing the superior court
to review alleged violations of fundamental constitutional rights is inapplicable.
          B.	   Relying On The Inadequate Record Produced In A Non-Adjudicative
                Grievance Process Would Create An Unacceptable Risk Of Violating
                A Prisoner’s Constitutional Rights.
                Osborne argues that the superior court necessarily had jurisdiction to
consider his appeal because he alleged a violation of his fundamental constitutional
rights.
                As discussed above, the superior court has jurisdiction to review
administrative actions not covered by AS 22.10.020(d) only when an alleged violation
of a fundamental constitutional right has been reviewed in an adjudicative proceeding
that produces a record capable of appellate review.12 Prisoner grievance decisions
usually do not result from adjudicative proceedings that produce a record capable of
review.13 We note that the policy basis for this requirement is not merely to promote
judicial economy; the requirement is also protective of the prisoner’s right to due
process. Challenging administrative decisions through the appropriate process is critical
to ensuring that an adequate record is developed and that the prisoner is given the
opportunity to be heard.
                We concluded in Owen v. Matsumoto that while a prisoner’s challenge to
DOC’s sentence calculations may raise constitutional issues, administrative appeal from
an informal DOC administrative decision is not the appropriate procedure for

          12
                Brandon, 938 P.2d at 1031.
          13
                See supra section III.A.; Welton, 315 P.3d at 1198.

                                             -6­                                     6951
considering those issues.14 In that case, a DOC inmate challenged DOC’s calculation of
his sentence by submitting a letter to the DOC Assistant Classification Officer.15 The
Officer “responded that the Time Accounting Task Force determined that none of
Owen’s claims had merit.”16 Owen filed a notice of administrative appeal, and the
superior court dismissed for lack of jurisdiction.17 We affirmed, concluding that
             [a]ny alleged violation of fundamental constitutional rights
             must be afforded judicial review. However, Owen has not
             shown that review by administrative appeal is the proper
             avenue for judicial review of an alleged miscalculation of his
             sentence. Owen has a right to have his sentence calculation
             reviewed, but not by way of appeal to the superior court.[18]
             Osborne argues that our decisions in Owen, Brandon, and Welton create a
“catch 22” where prisoners are required to exhaust all administrative remedies, but that
the DOC grievance system is inadequate because it produces only a paper record. He
suggests that this somehow impermissibly shifts the responsibility of making a record
for appeal to the prisoner and asks “how can . . . prisoners bring their claims or issues
befor[e] the court when DOC provides no other way of producing a ‘record’ except on
paper?”
             Osborne simply misunderstands our precedent. These cases do not in any
way deny a prisoner’s right to have his constitutional claim heard. To the contrary,
reviewing a non-adjudicative proceeding that produced an inadequate record would


      14
             859 P.2d 1308, 1310 (Alaska 1993).
      15
             Id. at 1308.
      16
             Id.
      17
             Id.
      18
             Id. at 1310.

                                           -7-                                      6951

create an unacceptable risk of violating a prisoner’s fundamental constitutional rights.
As is evident from the record in this case, the grievance process does not require factual
determinations or application of relevant law to the facts; there is no provision for a
hearing, and consequently there is no opportunity for a prisoner to present and rebut
evidence; and there is no rule of finality. Most importantly, just as Welton was not
precluded from bringing her claims against DOC as an original action in the superior
court,19 Osborne is not precluded from challenging his sentence calculation in the
superior court through an application for post-conviction relief.20
       C.	    Whether Osborne Exhausted Administrative Remedies Is Not
              Relevant To The Question Of Jurisdiction.
              Osborne asserts that the superior court erred by concluding that whether he
had exhausted his administrative remedies was irrelevant to whether it had jurisdiction
to consider his administrative appeal.        He argues that because he exhausted his
administrative remedies by filing a grievance and appealing the denial of his grievance
through DOC’s prisoner grievance process, he is entitled to judicial review of what
amounts to a final agency action.
              The superior court correctly concluded that exhaustion of remedies was
irrelevant to whether it had jurisdiction. Regardless, whether Osborne was required to
exhaust his administrative remedies, and whether he actually did, the superior court did
not have jurisdiction to hear his appeal because AS 22.10.020(d) does not confer
jurisdiction to the superior court to hear appeals from DOC grievance proceedings and



       19
              Welton, 315 P.3d at 1199.
       20
              See Alaska Criminal Rule 35.1(a)(1) (providing that a person “may institute
a proceeding for post-conviction relief . . . if the person claims . . . that [his] conviction
or [his] sentence was in violation of the constitution of the United States or the
constitution or laws of Alaska”).

                                             -8-	                                       6951

prisoner grievance proceedings are not sufficiently adjudicative and do not produce a
record capable of review.
        D.	   The Proper Avenue For Challenging A DOC Sentence Calculation Is
              An Application For Post-Conviction Relief.
              Osborne argues that the superior court erred by concluding that his claim
may only be brought as an application for post-conviction relief, contending that
sentence calculation errors are outside the scope of the statutes governing
post-conviction relief. But as we concluded in Owen, the proper vehicle for challenging
DOC’s sentence calculation is an application for post-conviction relief.21 Alaska
Criminal Rule 35.1 provides that “[a] person who has been convicted of or sentenced for
a     crime   may   institute   a   proceeding    for    post-conviction   relief   under
AS 12.72.010-12.72.040 if the person claims[] . . . that the conviction or the sentence
was in violation of the constitution of the United States or the constitution or laws of
Alaska.” And the limitations on applications for post-conviction relief set out in
AS 12.72.020(a) do not bar claims alleging sentence miscalculation. The superior court
did not err in concluding that Osborne’s sentence calculation claim should be brought
as an original application for post-conviction relief.
V.	     CONCLUSION
              For the reasons discussed, we AFFIRM the superior court’s order
dismissing Osborne’s administrative appeal.




        21
            Owen, 859 P.2d at 1309 (holding that the proper procedure for review of
a sentence miscalculation claim is to request post-conviction relief under
Criminal Rule 35.1).

                                           -9­                                      6951
