*1 restricting management’s The eases which have addressed this ment prerogative generally distinguish disciplin issue regard policies. between to transfer Accordingly, ary non-disciplinary versus transfers. The there finding is no basis for that such trans- subject grievance proce former are to the policies fer mandatory subject constitute a dure; latter fall within the the realm of bargaining. management prerogatives. E.g., City of light above, of the court’s conclusion (1986). Amboy,
Perth P NJPER there is no need to ascertain whether there distinguish The cases further man between “past practice” [ ] changed that was so agement’s assign to unfettered officers trigger as to grieve. By the way of duties, employees’ rights to different versus dictum, determines, however, the court grieve pertaining pay issues and other analysis such part would [be] of the merits of E.g., Township Wayne, benefits. of resolution, grievance and would not be an P NJPER 23016 appropriate subject for the Board or court to Management prerogatives derive from con- address. provisions tract such as that found in Article Appellant has not indicated evidence II, bargaining Section 1 of the collective that would have been ques- relevant on the agreement here. That section states: “It is tion mandatory bargaining subject. Since recognized that Municipality the retains the question resolution of that against APDEA in right, except provided as otherwise in this conclusive, this case is there was no need for agreement, manage the affairs of the Mu- evidentiary the Board to conduct an hearing. nicipality and direct its work force.” The agreement Based directly per- foregoing, section on the IT IS ORDERED taining VI, transfers is Article Section 14. Board’s decision is AFFIRMED. pertinent part provision of that reads: day December, DATED this 23rd 1994. assignments Job shall be made on the J. M. Woodward /s/ qualifications, by basis as determined JOAN M. WOODWARD Employer. Qualifications being equal, Superior Judge Court job assignments shall be made on the basis department seniority, save that an em-
ployee may involuntarily be transferred for
non-disciplinary job reasons to a different
assignment within division under fol-
lowing circumstances: (1) based Depart- the needs of the BRANDON, Appellant, Richard
ment as determined Chief Po- lice, designee, no more than his/her year_ Any once each calendar invol- Alaska, STATE of DEPARTMENT untary subject transfer shall be to re- CORRECTIONS, Appellee. OF grievance view under the and arbitration provisions No. of this contract S-6983. and shall not upheld if arbitrary, determined to be Supreme Court of Alaska. capricious, discriminatory or made bad faith. June APDEA grieve pursuant did not to this Rehearing July Denied section. APDEA griev- did not claim in its ance that the transfers were to a different they
division or that were not based on the
needs of the as determined argue Chief of Police. Nor did the union particular arbitrary, transfers were etc. provision
Yet there is no other agree- in the
OPINION MATTHEWS, Justice.
I. INTRODUCTION Brandon, prisoner serving Richard a state sentence, was transferred to a transfer in Arizona. He contends that because his interferes with his rehabilitation family him in Arizona. will not be able to visit by question presented this case is jurisdiction superior court had whether the appeal from the to hear his administrative Department of Cor- transfer decision of the (DOC). “yes.” rections Our answer is II. FACTS AND PROCEEDINGS serving twenty-five- Richard Brandon is year for a 1990 conviction. Due to sentence imple- overcrowding prisons DOC Alaska management plan. As population mented a part plan, contracted with the of this DOC Corporation of America to house Corrections inmates at the Central about Alaska Florence, Ari- Arizona Detention Center zona. for transfer ask-
DOC selected inmates through ing “going and then volunteers finding its records and inmates who fit two categories.” categories was broad One of the “inmates with seven and one-half or more years selected un- to serve.” Brandon was category. der this Initially, Brandon was incarcerated at the No- Spring Creek Correctional Center. On 28,1994, given notice of vember Brandon was hearing concerning “[pjossible a classification A transfer to an institution outside Alaska.” 30, hearing was held November Hearing Officer Donald Nelson rec- acknowledging that ommended transfer while family in Alaska and made Brandon’s was weekly Superintendent Larry Kinche- visits. subsequently approved loe the recommenda- tion. Florence, AZ, Brandon, pro se. Richard appealed On December Terrell, McKinistry. Attorney Larry Timothy Assistant to DOC Commissioner W. (1) Botelho, General, Anchorage, appeal, At- In this Brandon claimed: Bruce M. Juneau, General, hearing illegal hearing two torney Appellee. was because (2) present; the outcome of the
officers were (3) COMPTON, C.J., hearing predetermined; fair consid- Before and MATTHEWS, RABINOWITZ, given was not to the rehabilitative EASTAUGH eration (4) visits; family FABE, nature of and JJ. finding officers erred in present questions tutional issues of law and adversely would not be affected the trans- de novo. reviewed Keane v. Local Comm’n, December 19 the Boundary fer. On was re- premature turned because the central yet
classification office had not
notified Bran-
*3
day,
don of the transfer. On that same
Chief
IV. DISCUSSION
Spinde
Classification Officer Robert P.
in-
22.10.020(d) states,
Alaska Statute
“The
possible
formed Brandon that due to a
error
superior
jurisdiction
court has
in all matters
in providing
hearing,
notice of the
Brandon
appealed to it from
...
a[n]
administrative
given forty-eight
would be
hours
submit
agency
appeal
provided by
when
is
law.” We
further relevant information.
previously
have
stated that neither the Ad-
1, 1995,
January
ap-
On
Brandon filed an
Act,
ministrative Procedure
AS 44.62.010-
peal from DOC’s December 19 decision with
.650,
statutory provision
nor
other
pro-
superior
appeal
court. The
claimed that
appeal
vides for an
from a DOC administra-
appeal
the December 15
to the DOC commis-
Matsumoto,
tive decision.
Owen
859 P.2d
“arbitrarily rejected.”
sioner
ap-
was
The
(Alaska 1993).
1308, 1309
Thus AS
peal
process
listed various due
violations. 22.10.020(d)
jurisdiction
does not confer
on
superior
court
appeal.
to hear this
January
given
On
3 Brandon was
notice of
prison.
his transfer to the Arizona
On Janu-
However, we have held that adminis
ary
appeal
8 Brandon submitted an
similar to
appeals
proper
trative
are
from certain DOC
appeal
deputy
the December 15
to the DOC
determinations even when not authorized
January
appeal
commissioner. On
10 this
Carothers,
statute. See Hertz v.
784 P.2d
appears
appeal
was denied. It
that no
of this
(Alaska
659,
1990).
example,
For
“an
filed; rather,
superior
denial was
court
judicial
inmate
[has]
review of
original
continued to work from the
January
major disciplinary proceedings when issues
1 appeal.
magnitude
of constitutional
are raised.” Id.
appeal claiming
DOC moved to dismiss the
660;
Kraus,
at
Corrections v.
jurisdiction.
argued
the court lacked
It
that
(Alaska 1988);
759 P.2d
McGinnis v.
jurisdiction
the court did not have
to review Stevens,
543 P.2d
1236 n. 45
type
this
of decision in an administrative
1975).
Owen,
explicitly
In
we
declined to
appeal because the decision to transfer Bran-
“judicial
hold that
review of DOC administra
“adjudicative”
don was not
pro-
made
an
disciplinary
tive decisions is limited to
ac
ceeding
proceeding
produced
or in a
that
tion.”
05.216(4).5 In the addition committee tois REVERSED and REMANDED. findings” “make written and factual “indicate upon” “provide the evidence so as to relied RABINOWITZ, Justice, dissenting part. in adequate an basis for of its review decision.” 05.216(b)(8).6 22 including AAC A form dissent from section IV.A. of the court’s opinion. factors on which the decision was made is to 05.216(b) (B) part: provides years 3. 22 AAC in three if the classification is action appealed Superior Court to the or the classi- The to at is entitled least 48 hours' fication in a to a action resulted transfer advance written of a notice classification hear- Alaska; facility or outside of ing. ... (C) days 30 if the classification action is not appealed. 05.216(b)(7) provides part:
4. 22 AAC 05.216(b)(8) hearing may prepare part: provides [B]efore the 22 AAC statements, testimony, compile solicit or [T]he classification will make committee writ- evidence if such action would not create a findings, ten will indicate factual and the evi- reprisal substantial risk of undermine secu- dence relied in sufficient detail so as to rity facility. of the provide adequate for review an basis of its decision.... 05.216(b)(4) provides part: 5. 22 AAC 05.216(c) part: provides 22 AAC purpose hearing [I]f the is ... transfer Alaska, facility complete outside of will be The classification committee shall tape kept recorded in transcribable the Classification Sentenced Prison- form Form for _ custody ers The decision as and securi- (A) ty 12 months status on the factors con- if the action is must be based appealed department; within the tained in the form. 1034 designed programs of access to to reform that DOC violated his tee asserts prisoner. right to rehabili- constitutional
fundamental
I,
12 of the Alas-
article
section
tation under
in oor first
This distinction was drawn
that a
It is well established
ka Constitution.1
recognized
which
a constitutional
decision
deci-
may
court
review
right
Abraham v.
to rehabilitation.
(Alaska 1978),
only
they affect a fundamental
a na-
when
P.2d 526
addressed
sions
he
prisoner’s complaint
tive
was denied
right. Abruska v.
constitutional
(Alaska
programs, that as a
access to alcohol abuse
Corrections,
319, 321
Yupik speaker he would be in
iso-
virtual
Matsumoto,
1995);
v.
Owen
prison,
lation in state
and that he would be
1993).2
(Alaska
pre-
This court has not
Id. at
denied his traditional native diet.
a fundamental constitu-
viously recognized
only grievance which this court
533. The
See, e.g.,
right to visitation.
McGinnis
tional
acknowledged
raising
as
a valid rehabilitation
Stevens,
P.2d
1237-38
claim
Abraham’s asserted denial of ac-
visits).
1975)
conjugal
(finding
no
programs.
cess to alcohol abuse
Id. at 533.
the United States has
Supreme Court of
the rather harsh circumstance of incar-
Even
rejected the existence of such
unambiguously
cerating
he
be unable
Abraham where would
Kentucky Dep’t
Corrections v.
right.
to communicate with others was not viewed
454, 460-61,
Thompson,
490 U.S.
S.Ct.
implicating
as
his
to rehabilitation.3
1904,1908-09,
does not as a case because there we made clear the flaw in program. ed reform Like Abraham’s lan- Hays’ jurisdictional. claim was Id. at 785. claim, guage alleges only that the Although Hays alleged had he was removed change geographical in the location of his opportunity, from a reform prison because is harsh and will limit confinement visitation authorities had discretion to determine which family. with his two children and The record him, program grievance was best for his did does not indicate that Brandon claims ishe not raise “an magni- issue of constitutional appropriate denied access to tude.” Id. superi- We therefore affirmed the programs. guarantor the courts While Hays’ court’s dismissal of programs, of access to such it is not their subject jurisdiction. lack of matter role to define what needs should be ad- dressed or programs how rehabilitative Finally, outset, as noted at the I would Historically should be structured. such deci- reject Brandon’s effort to reformulate his legislative judgment sions have been left challenge transfer as a constitutional rehabil- Respect and the discretion of DOC. for this Allowing itation claim. such a conversion authority precludes allocation of courts from holdings eviscerates the of our decisions reviewing, guise enforcing under the Abraham and Rust. If a prisoner’s mere prisoner’s to rehabilita- allegation placement that his interferes with tion, impact changes on inmates of enough judicial his rehabilitation trigger place their of confinement. review, then all may transfers be reviewed discretion, The fact of DOC and concomi- by courts. review, judicial tant limitations on were rec- many Movement of inmates raises issues Hays ognized by this court in only properly that can be considered from P.2d 783 There we held that prison perspective. administrator’s For cognizable inmates have no interest in access reason, this would hold that a Id. particular programs. seeking review must establish in the Hays 785. Petitioner had been fired as a appeals process DOC administrative that his poor librarian because of his attitude *7 rehabilitation claim on a rests factual basis snow, position shoveling and transferred to a other than the mere assertion that transfer where he would have less direct contact with placement adversely or affects visitation. A recognized at others. 784. We that the allegation placement mere that a transfer or library position constitutionally pro- was a adversely impacted decision of DOC visita- rehabilitation, tected form of but neverthe- tion does not raise an issue of fundamental rejected less Hays because “was right requiring judicial constitutional review.5 opportunities.” not denied all rehabilitative Id. words, 785. One additional DOC could ex- observation. The court prisoner clude a pro- recognition from an actual reform notes that its “visitation gram, appropriate so privileges some form of component are a of the constitu- State, Health, 33.30.061(b) Dep’t complaint. See also Goodlataw v. The court relies on AS of (“Rehabilita- 1985) to establish a link between transfer and con- implies therapeutic program working tion stitutional to rehabilitation. Section period complex prob- over a of time to correct a .061(b) may declares that an Alaskan lem.”) omitted); (emphasis LaBarbera v. facility "only moved to an out-of-state if the com- (Alaska 1979) (judicial inter- missioner determines that or treat- appropriate only vention is when the state fails substantially ment of the not be will provide appropriate pro- "to an impaired.” requires While the section consider- gram.”). transfer, impact ation of the it vests this re- sponsibility only. with DOC Nowhere does it apart I note that from constitutional basis Indeed, judicial authorize review. elsewhere the decision, for review of DOC’s transfer no Alaska statute declares that “the commissioner shall statute authorizes review of Brandon’s does not define right to rehabilitation
tional on scope permissible limits required
their have to definitions will Such
their exercise. adjudications.” Given in future
be achieved component is now a prisoner visitation rehabilitation, it Department of that the Correc-
seems to me necessarily
tions, will encoun- of Alaska State justify difficulty attempting great
ter incarcerations, incar- most out-of-state
most facilities, in urban of rural Alaskans cerations encompass sig- incarcerations that
and most (e.g., Fair- geographical
nificant dislocation correc- incarcerated
banks residents Seward). facility located in This is not tional prisoners incarceration of say that view inap- that will facilitate visitation locations contrary, I think such a
propriate. On salutary despite the
development is a one
significant implications fiscal which will flow implementation of this constitutional
from prisoner visitation. PAYTON,
Tom and Diane on behalf of similarly and others
themselves
situated, Appellants, Rue, Frank in his
STATE of Alaska and capacity
official as Commissioner Game, Appellees.
Fish and
No. S-7557.
Supreme Court of Alaska. 13, 1997.
June *8 Corrections," designate facility correctional discretion of the Division of which trative 33.30.061(a). prisoner is to be committed.” AS and "the exercise of that discretion within consti- Rust, 137-38, language 582 P.2d at this In interpreted subject tutional bounds is not to the control or to hold that all transfers review of the courts.” Id. at 138 n. 11 ultimately within the discretion of DOC. (quoting Agency Superior Public Defender delegation authority Rust relied on this Court, (Alaska 1975)). virtually dismiss a claim identical to the one grounds finding To the the court its extent presented sought here. Petitioner Rust an order 33.30.061(b), jurisdiction in AS it relies on that prohibiting Anchorage, his transfer out of where remedy plainly to create a that it does not statute presence family Eagle of his River would would adhere to our decision in authorize. "benefit his Id. at 135. This rehabilitation." statutory and hold there is no basis for Rust place- rejected court We found that prisoner transfer claims. review of prisoners ment of to the adminis- “is committed