Opinion
Supreme Court No. S-12244.
July 11, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge, Superior Court No. 3AN-03-12351 Civil.
Russell D. Carlson, Eloy, Arizona, pro se. John K. Bodick, Assistant Attorney General, Anchorage, Craig Tillery, Acting Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
This appeal is Alaska prisoner Russell Carlson's second appearance before this court regarding his transfer. The dispute began when the Alaska Department of Corrections ("DOC") transferred Carlson from the Palmer Correctional Center to a prison in Arizona. Carlson appealed from this administrative decision to the superior court, but the superior court dismissed his appeal as untimely. Carlson appealed the superior court's dismissal, which this court reversed. In its order on remand, this court observed that the record of the DOC proceeding was insufficient to permit appellate review by the superior court, and accordingly this court instructed the superior court to either recreate the record or remand to DOC for it to recreate the record.
On remand, the superior court was unable to recreate the record. The superior court accordingly remanded Carlson's appeal to DOC. However, rather than instruct DOC to recreate the record, the superior court ordered DOC to hold another transfer hearing and redetermine whether Carlson legally qualified for the transfer. Carlson filed a motion in superior court for reconsideration of this decision, which the superior court denied. Carlson now appeals from the superior court's order on remand and from the superior court's denial of his motion for reconsideration.
We dismiss the appeal as premature. Under Alaska Appellate Rule 202 an appeal may only be taken from "a final judgment." We held in City Borough of Juneau v. Thibodeau that there is no final judgment when a matter is appealed from an administrative agency to the superior court and the court remands one or more of the issues on appeal to the agency. Since the superior court remanded this case to DOC for a hearing de novo, the Thibodeau rule applies, and there is no final judgment at this point from which an appeal may be taken. The appeal is therefore DISMISSED without prejudice.
595 P.2d 626, 629 (Alaska 1979).
We believe that the original transfer decision has implicitly been vacated by the superior court's order of remand to DOC. Vacation of the transfer decision would be necessary if the record on which the original decision was based could not be recreated. See Shadle v. Municipality of Anchorage, 941 P.2d 904, 905 (Alaska App. 1997) ("When there is no electronic record of the pertinent lower court proceedings, or when that record is missing or destroyed, the Alaska appellate rules provide various mechanisms for reconstructing the record. However, when the missing record can not be adequately reconstructed to allow meaningful appellate review of the defendant's claims of error, the lower court's decision must be reversed and the defendant must receive a new hearing or trial." (citations omitted)).