Alaska Supreme Court: DOC Can’t Unilaterally Redefine ‘Parole Release Date’
by Douglas Ankney
On December 8, 2023, the Supreme Court of Alaska held that the state Department of Corrections (DOC) violated the rulemaking process laid out in the Administrative Procedures Act (APA) when it unilaterally changed the definition of “firm release date” found in 22 Alaska Administrative Code (AAC) 05.660(a)(18)
In 2016, the Parole Board granted discretionary parole to prisoner Trevor Stefano, directing his release in 2021. Before that, in 2018, Stefano applied for, and received, release on discretionary furlough with electronic monitoring. But he was remanded back to custody in 2019. When he applied again for discretionary furlough, DOC denied the application, saying “it would no longer consider the date of release on discretionary parole a ‘firm release date’ for purposes of furlough eligibility.”
Stefano filed a complaint in state superior court, arguing that DOC’s policy change violated the APA. The superior court granted summary judgment to DOC, reasoning that the changed definition “reflect[ed] a commonsense interpretation of [the regulation] according to its own terms,” which did not require rulemaking. Stefano appealed.
The Alaska Supreme Court observed that some discretionary furlough eligibility criteria are established by statute, while the legislature delegated DOC authority “to adopt additional criteria for discretionary furlough through regulation” under AS 33.30.101. DOC’s regulations provide that a prisoner sentenced to longer than one year is eligible for discretionary furlough only if he or she is “within three years or less of the firm release date,” under 22 AAC 005.321(c)(2). Prior to 2016, DOC that did not include the date on which a prisoner was to be released on discretionary parole. But that year, DOC decided that a prisoner’s “firm release date” did include a discretionary parole release date—until the agency “reversed course” in 2019and decided that the date of release on discretionary parole did not count as a “firm release date.”
When determining whether an agency action is a regulation requiring formal rulemaking—as opposed to an interpretation of existing regulations—the Court said it must employ a two-part test, per AVCG, LLC v. State, Dep’t of Nat. Res., 527 P.3d 272 (Alaska 2023). That test, as earlier laid out in Chevron U.S.A., Inc. v. State Dep’t of Revenue, 387 P.3d 25 (Alaska 2016), finds a state agency has adopted a regulation “when it (1) implements, interprets, or makes specific a statutory directive and (2) that action impacts the agency’s dealings with the public.” Furthermore, whether an action “affects the public” is determined by whether it “alter[s] the rights or interests” of members of the public, per State Dep’t of Nat. Res. v. Nondalton Tribal Council, 268 P.3d 293 (Alaska 2012). “APA’s definition of a regulation,” the Court added, “includes not only rules and standards of general application but also ‘the amendment, supplement, or revision’ of such rules and standards,” per AS 44.62.640(a)(3).
The Court opined that an agency’s first statutory interpretation may not require rulemaking. But when the agency then “alters its previous interpretation” in a way that’s inconsistent, “rulemaking is required” under Chevron. “Because that is what the [DOC] did here,” the Court declared, “its action met the first criterion for rulemaking.”
With regard to the second criterion, the Court observed that “the definition of ‘firm release date’ affects prisoners’ interests because it determines when they will be eligible for release on furlough.” It “establish[es] criteria” for evaluating furlough applications. It also “embodies [a] finding as to a particular application”—in this case, before Nondalton Tribal Council—”because a prisoner with a sentence of more than one year only qualifies for discretionary furlough within three years of the prisoner’s firm release date.” The Court rejected DOC’s argument that prisoners are not members of the public, having previously treated them so for APA purposes under Hertz v. Macomber, 297 P.3d 150 (Alaska 2013). Accordingly, the Court reversed the grant of summary judgment and remanded the case for further proceedings. See: Stefano v. State, 539 P.3d 497 (Alaska 2023).
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