Gregory Smith, Rowdy James, Sharlynn Morgan, Arthur Smith, Larry Tunley, and Brian Vaughan v. Municipality of AnchorageGregory Smith, Rowdy James, Sharlynn Morgan, Arthur Smith, Larry Tunley, and Brian Vaughan v. Municipality of Anchorage
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.gov.
Appearances: Gregory Smith, pro se, Anchorage, Appellant. Jessica B. Willoughby, Assistant Municipal Attorney, and Anne R. Helzer, Municipal Attorney, Anchorage, for Appellee. Melody Vidmar and Eric Glatt, Anchorage, for Amicus Curiae ACLU Alaska Foundation.
Before: Maassen, Chief Justice, and Carney, Borghesan, Henderson, and Pate, Justices.
MAASSEN, Chief Justice.
I. INTRODUCTION
Municipal ordinances outline a procedure for “campsite abatement” — the removal of unauthorized campsites from public property following posted notice of the decision that they are subject to abatement. Part of that procedure is an appeal to the superior court.
The superior court in this case determined that its appellate jurisdiction was limited by ordinance to the issue of whether the posted notice of abatement was legally sufficient and did not permit it to decide whether the abatement itself was proper. We conclude that the superior court’s jurisdiction is not so limited. We therefore reverse its decision and remand for further consideration of the constitutional challenges to abatement raised on appeal. We also direct the court on remand to determine whether the administrative record is sufficient for purposes of meaningful appellate review and, if it is not, to take the necessary steps to ensure that it has such a record.
II. FACTS AND PROCEEDINGS
A. Facts
The Anchorage Municipal Code (AMC) identifies “prohibited campsites” as public nuisances and provides a detailed set of procedures the Municipality can use to address them.1 In all cases, notice of an impending abatement must be posted before the physical removal of people and property may begin.2 There are four different notice periods: 24 hours for wildfire danger areas,3 72 hours for campsites near protected land uses like trails and playgrounds,4 ten days for “zone abatements” (when the Municipality simultaneously abates all campsites within a contiguous area),5 and 15 days for most other campsites.6 The abatement procedure specifies that an appeal to the superior court may be taken “within 30 days from the date the notice of campsite abatement is posted, in accordance with the Alaska court rules.”7
In June 2022 the Municipality posted a “Notice of Zone Campsite Abatement/Clean Up” in Davis Park.8 The notice advised that
B. Proceedings
In their appeal, the individuals argued that the abatement violated due process because it allowed the Municipality to seize personal property without an opportunity for a hearing (or, in fact, “any proceedings of any kind[,] . . . as shown by the lack of record from the municipality”). They also cited the “danger doctrine,”9 explaining that because the Municipality was unable to provide adequate shelter for the homeless, taking away their “bed[d]ing, cooking implements, and protection against the elements” through campsite abatement violated the Eighth Amendment’s prohibition on cruel and unusual punishment.10 The Municipality responded that the Municipal
Code provides only for appeal of the notice of abatement, not of the abatement decision itself. According to the Municipality, this meant that the only action subject to challenge was the posted notice and whether it complied with the Code’s notice requirements;11 therefore, because the appellants agreed that the notice did comply with the Code, there was nothing left to their claims that the superior court had jurisdiction to decide on appeal.
The superior court agreed with the Municipality’s position. It decided that the Code limited the court’s appellate jurisdiction to the notice’s legal sufficiency, and because the appellants did not challenge that, their case had to be dismissed. The court further observed, however, that the appellants’ claims were “not wholly without merit” and that it agreed with the parties’ stipulation that “a civil suit is an available recourse to address [the individuals’] claims.”
One of the individual appellants, Gregory Smith, appeals the dismissal. The American Civil Liberties Union of Alaska filed a brief as an amicus curiae and argued the case on Smith’s behalf.
III. STANDARD OF REVIEW
The courts’ subject matter jurisdiction to hear an administrative appeal presents a question of law; therefore we review the superior court’s dismissal order de novo.12
IV. DISCUSSION
A. Superior Courts Have Jurisdiction Over Substantive Appeals Of Campsite Abatement Decisions.
Pursuant to
1. The plain language of AMC 15.20.020 , and the language of the posted notice itself, support the right to appeal a campsite abatement decision.
Appeal procedure. A posted notice of campsite abatement is a final administrative decision and appeals shall be to the superior court within 30 days from the date the notice of campsite abatement is posted, in accordance with the Alaska court rules. If the owner or person in possession of personal property at the time the notice is posted responds in writing to the municipality prior to expiration of a ten-day notice of the owner’s intention to appeal the campsite abatement to the superior court, the municipality shall not remove the personal property until at least 30 days have passed from the date the notice was first posted, except as provided in subparagraph B.15.f.ii.16
The ordinance goes on to provide for a stay of abatement during the pendency of an appeal, though it anomalously allows the Municipality to “remove personal property and store it” during that time.17
As noted above, the superior court decided this case on the basis of subject matter jurisdiction, concluding that “subsections (e) and (f) of
and appeals shall be made to the superior court within 30 days from the date the notice of campsite abatement is posted, in accordance with the Alaska court rules.”18 The Vaughan court then noted the ordinance’s further provisions allowing the Municipality to seize and store personal property during the pendency of any appeal and providing that “the appeals process under these subsections does not prevent eviction from municipal lands or provide an ability to appeal or stay the eviction part of campsite abatements.” Because the authorized appeal process thus could not have any substantive effect on the abatement, the court reasoned that it lacked subject matter jurisdiction to hear any claims
We are not persuaded that the ordinance’s characterization of the notice as the “final administrative decision”19 supports a conclusion that only the legal sufficiency of the notice may be appealed. The posted notice of a decision may or may not be the decision itself, depending on its substantive content and what preceded it. But the phrase “final administrative decision” undoubtedly represents a deliberate choice of words in the context of describing an appeals process, because judicial appeals from administrative decisions not explicitly identified as final are premature.20
Reasonably read, the ordinance’s statement that a posted notice “is a final administrative decision” is meant not to restrict the subject matter of appeals to the notice itself, but rather to simply inform the reader that once the notice is posted, the 30-day period for appeal has begun to run.
The Code’s language is reflected in the notice posted at Davis Park, which states that it “serves as a final decision of the Municipality of Anchorage that this posted zone/campsite is subject to abatement” and that “[y]ou may appeal this decision.” And while the notice may not contain the full extent of the decision-making that preceded it, the substance of the decision is reflected in the notice’s language. For example, the notice states that “[t]his is not a legal area for storage or shelter” and “this posted zone/campsite is subject to abatement.” In order for a campsite to be “subject to abatement,” it must be “an area where one or more persons are camping on public land in violation of section 8.45.010 [defining trespass under the penal code], chapter 25.70 [listing prohibited conduct on public lands], or any other provision of this Code.”21 Determining the accuracy of the Municipality’s legal conclusions requires interpreting the Code and applying that interpretation to the facts, tasks the courts are well equipped to handle.22
We do recognize the ordinance’s procedural anomaly. Subsection (B)(15)(f)(i) states that “[a]batement of the campsite area is stayed until the appeal is withdrawn, settled, or a decision is issued and any subsequent appeal rights expire,” but subsection (B)(15)(f)(ii) adds the proviso that “the municipality may remove personal
property and store it until either the appeal is withdrawn, settled, or a decision is issued and any subsequent appeal rights expire.”23 The ordinance thus appears to provide that although abatement is stayed pending a timely appeal, the removal and storage of personal property may continue. But what more is there to abatement besides the removal of personal property from a prohibited campsite?24
Even if we were to assume, however, that the ordinance does not allow for an effective stay of the abatement, we would still conclude that it does not restrict the right to appeal from the abatement decision itself.
2. The legislative history of AMC 15.20.020 supports the right to appeal a campsite abatement decision.
The legislative history of
“appeal procedure.”26 The amended appeal procedure was much more comprehensive at the administrative level than it is now, including a “quasijudicial” hearing before an administrative hearing officer before any judicial appeal could be taken. The ordinance described the appeal procedure as follows:
A posted notice of campsite abatement is final if a campsite occupant does not file a notice of appeal under section 3.60.035 with the municipal administrative hearing office by the date indicated on the notice. To be filed with the administrative hearing office, the notice of appeal must be received prior to the time and date on the posted notice after which abatement may commence. An appeal is filed with the administrative hearing office upon receipt of a written notice mailed or transmitted by facsimile, or upon personal appearance of an appellant camper with a written or verbal request to appeal. Upon receiving a notice of appeal, the administrative hearing office shall schedule a hearing as soon as practicable and no later than five (5) business days following receipt of the appeal. The notice of the administrative hearing shall be served on the appellant personally, by mail or facsimile if such information for that purpose is provided by the appellant, or posted at the same place or area where the notice of abatement being appealed was posted. The administrative hearing shall not proceed unless there is proof of service or posting at least two (2) business days prior to the hearing. Proof of service or posting may be submitted by affidavit, and may be accomplished by any municipal employee or a person qualified for service of process under the Alaska court rules. The issues at the hearing are whether (i) the campsite is illegal and (ii) all the property found thereon may be disposed of as waste forthwith. If the administrative hearing officer affirms the notice of campsite abatement, the municipality may proceed to abate the campsite without delay and all personal property found thereon disposed of as waste. Except as otherwise provided in this subsection, the
appeal hearing shall be conducted as a quasijudicial proceeding under chapter 3.60.27
Most notably for purposes of the issue before us now, the ordinance’s description of the appeal process defined the two “issues [to be determined] at the [administrative] hearing” as: “whether (i) the campsite is illegal and (ii) all the property found thereon may be disposed of as waste forthwith.”28
This ordinance — amended again in September 2010, with the above-quoted portion left intact29 — was challenged in 2010 and struck down by a superior court in Engle v. Municipality of Anchorage.30 Addressing the appeals process, the Engle court ruled that because final decisions by the administrative hearing officer on abatements were stayed
The Anchorage Assembly responded by passing an ordinance that, among other things, changed the appeals process to its current form and provided for longer-term storage of personal property pending appeal “until either the appeal is withdrawn, settled, or a decision is issued and any subsequent appeal rights expire.”32 The
ordinance entirely eliminated the intermediate step of appeal to the administrative hearing office, replacing it with a direct appeal to the superior court.33
Importantly for this case, deleting the ordinance’s description of the administrative hearing process included deleting the definition of the issues to be determined at the administrative hearing.34 This raises the question whether the Assembly actually intended to narrow the issues that could be appealed from what they had been expressly — “whether (i) the campsite is illegal and (ii) all the property found thereon may be disposed of as waste forthwith”35 — to something much narrower: the legal sufficiency of the posted notice.
We see no reason to believe that this was the Assembly’s intent. The Engle decision, to which the Assembly was reacting,36 was primarily concerned with procedural due process: ensuring that occupants of abated campsites could exercise their appeal rights without being deprived of their personal property before the appeal was resolved.37 The Assembly’s remedy was to cut out the intermediate step of an administrative hearing and, in essence, let the courts handle it. This meant it was no longer necessary to instruct the administrative hearing office as to what issues were within its authority to decide on abatement appeals. But we cannot read the legislative silence as an affirmative decision that the courts should not be considering at least the same core questions as had formerly been left to the hearing officer.
We conclude, therefore, that the intended scope of review under the current ordinance is at least as broad as it was before Engle, including “whether (i) the campsite is illegal and (ii) all the property found thereon may be disposed of as waste forthwith.”38 The question of the campsite’s legality encompasses the constitutional due process issues Smith raises; although they would be outside the jurisdiction of the administrative hearing office, they fall within the special expertise of the courts.39 Smith’s challenges to the campsite abatement were proper subjects for judicial review on appeal.
B. If The Superior Court Determines That The Record Is Insufficient For Appellate Review, It May Order The Municipality To Supplement The Record, Remand To The Municipality For Development Of A Sufficient Record, Or Order A Trial De Novo.
Because the Municipality considered appellate review to be limited to the legal sufficiency
posted notice, one dated and one not. There are no memoranda, emails, notes, or other documentation of the thought process that presumably went into reaching the notice’s conclusion that Davis Park was “not a legal area for storage or shelter” and campsites there should be abated. The Municipality contends that the sparsity of this record, which it prepared, is enough of a hindrance to appellate review that it necessarily limits the superior court’s jurisdiction.
The Municipality relies in part on a series of cases involving prisoners’ appeals, in which we have noted our limited subject matter jurisdiction in the specific area of Department of Corrections (DOC) disciplinary decisions.41 As observed above,
We have described what is necessary for a proceeding to be deemed “adjudicative”:
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.44
Based on the rationale of our DOC decisions, the Municipality argues that “the Superior Court lacked jurisdiction to consider Smith’s constitutional grievances because the decision was not made in an adjudicative proceeding and did not produce a record capable of review for constitutional issues.”
But our DOC decisions are inapposite. They define the limits of an exception to what would otherwise be a complete lack of superior court appellate jurisdiction in an area in which appeal is not “provided by law.”45 Here, appeal is provided by law: we have held that municipalities’ administrative decisions are presumptively subject to judicial review,46 the Anchorage Assembly has directed, by ordinance, that “appeals shall be to the superior court,”47 and the posted notice gives the reader the same instruction. A right to appeal generally encompasses the right to a record sufficient for appellate review.48 A record that does not satisfy this
The Municipality aptly cites our decision in Fields v. Kodiak City Council49 about the importance of an administrative record to appellate review. There, reviewing a city board of adjustment’s decision to deny a zoning variance, we held that “[o]nly by focusing on the relationship between evidence and findings, and between findings and ultimate action, can we determine whether the board’s action is supported by substantial evidence.”50 According to the Municipality, this supports its contention that appellate review in this case is limited to the posted notice and the notice requirements of the Code, because the record is otherwise devoid of “evidence and findings.” But this argument overlooks our resolution of Fields. Because the board’s failure to “set forth findings” made it “impossible to determine whether the denial [was] based on appropriate factors,” we remanded the case “for the purpose of directing the Kodiak board of adjustment to set forth findings relevant to the conditions required for granting a variance.”51
In Southeast Alaska Conservation Council v. State, we considered a challenge to the State’s decision to enter into a timber contract; the decision was based on “a written finding and decision document by the Director of Forest, Land and Water Management” which “reflect[ed], albeit somewhat sparsely, the facts and premises on which the decision to enter into the contract was based.”52 The superior court held a
trial on whether the contract violated “Alaska constitutional and statutory requirements that timber be harvested on a sustained yield basis.”53
Preliminary to our review of the merits, we described the central importance of a decisional document in administrative appeals:
A decisional document, done carefully and in good faith, serves several salutary purposes. It facilitates judicial review by demonstrating those factors which were considered. It tends to ensure careful and reasoned administrative deliberation. It assists interested parties in determining whether to seek judicial review. And it tends to restrain agencies from acting beyond the bounds of their jurisdiction.54
We then explained that the superior court, on its appellate review, “should have focused on the decisional document. If the document was found to contain an inadequate[ly] reasoned explanation, the court was authorized to remand it to the agency for supplementation instead of conducting a trial.”55 We noted that in the case then before us, the combination of “the Director’s written decision and the trial evidence” meant that “the reasoning underlying the sale [was] clear,” so that “no remand for supplementation [was] necessary.”56 But we instructed that “[i]n future cases involving important natural resource sales we strongly suggest . . . a remand if the basis for agency action is unclear.”57
V. CONCLUSION
We REVERSE the decision of the superior court and REMAND the case to the superior court for further proceedings consistent with this opinion.