Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robert Smith v Michael Cleary (06/22/2001) sp-5426

Robert Smith v Michael Cleary (06/22/2001) sp-5426

     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.


ROBERT SMITH, Commissioner,   )
Department of Health and      )
Social Services; ROGER ENDELL,)
Director, Division of Adult   )
Corrections, Department of    )
Health and Social Services;   )    Supreme Court Nos. S-7810/7850
VERNON CAULKINS, Assistant    )
Director, Division of Adult   )
Corrections, Department of    )
Health and Social Services;   )
REVEREND WILLIAM LYONS,       )    Superior Court No.
CONRAD MILLER, all of the     )
Alaska Parole Board; SAMUEL   )
TRIVETTE, Executive Director  )
of the Alaska Board of Parole,)
and their subordinates,       )
employees, and agents,        )
                              )    O P I N I O N
          Appellants and      )
          Cross-Appellees,    )
          v.                  )    
                              )    [No. 5426 - June 22, 2001]
ERNEST MORGAN, on behalf of   )
themselves and all other      )
persons who are now or will   )
be similarly situated,        )    
          Appellees and       )
          Cross-Appellants.   )   

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Karen L. Hunt, Judge.

          Appearances: John K. Bodick, Assistant
          Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellants/Cross-Appellees. 
R. Scott Taylor and Phillip R. Volland, Rice, Volland & Taylor,
P.C., Anchorage, for Appellees/Cross-Appellants. 

          Before: Matthews, Eastaugh, Bryner, and
Carpeneti, Justices.  [Fabe, Chief Justice, not participating.] 

          BRYNER, Justice.

          The state and a group of state prisoners entered into an
elaborate agreement to settle a class action challenging conditions
in Alaska prisons.  To alleviate overcrowding prohibited by the
agreement, the state proposed to transfer a large group of
prisoners to a private prison in Arizona.  Alaska prisoners asked
the superior court to enjoin the transfer.  The court denied the
injunction and approved the transfer, but required the Arizona
facility to comply with the settlement agreement's provisions.  On
appeal, the state challenges this requirement, arguing that the
agreement does not cover private prison facilities.  But the plan
to transfer prisoners was designed to achieve compliance with the
settlement agreement's overcrowding provisions and so, under the
agreement's express terms, required court approval.  Because the
superior court did not exceed its approval authority by requiring
the Arizona facility to comply with the agreement, we affirm. [Fn.
          This case began in 1981 as a class action brought 
against the state by Alaska prisoners challenging prison
conditions. The plaintiffs formed three subclasses: pretrial
detainees (subclass A), sentenced prisoners in state owned or
operated correctional centers (subclass B), and prisoners held by
the state in federal facilities (subclass C).  Although the state
and subclass C settled in 1983, litigation continued with the
remaining subclasses until the parties entered a comprehensive
settlement, which the superior court incorporated in a consent
decree in 1990. 
          The settlement agreement applied to "all inmates, with
some exceptions, who are or will in the future be incarcerated in
correctional facilities owned or operated by the state" and bound
the Department of Corrections and "any successor department,
division, or agency of the state of Alaska which is statutorily
responsible for the administration of the state's adult
correctional facilities."  It included elaborate provisions for
future operation of Alaska prisons, enumerated rights of inmates,
guaranteed the availability of specific rehabilitative programs and
services, required the state to implement an inmate classification
system, created population guidelines, and established caps to
eliminate overcrowding.  The agreement also established mechanisms
to monitor ongoing compliance, including a provision calling for a
designated superior court judge to have continuing jurisdiction
over alleged violations.  The questions before us relate to that
continuing jurisdiction.
          After the parties entered into the settlement agreement,
Alaska prison populations began to consistently exceed allowable
limits.  The superior court held the state in contempt and ordered
it to pay sanctions for each day that prison populations exceeded
the guidelines set forth in the settlement agreement.  The court
further ordered the state to submit monthly population reports as
long as it remained in non-compliance.  In response, the state
entered a sole-source contract with Corrections Corporation of
America to house Alaska prisoners at the Central Arizona Detention
Center, a private correctional facility it operated in Arizona. 
The contract contained confinement conditions modeled on American
Correctional Association standards but did not expressly
incorporate the rights and benefits secured by the settlement
          Michael Cleary and other state prisoners (collectively,
Cleary), acting on behalf of all similarly situated prisoners,
challenged the proposed transfers to Arizona and moved for
preliminary and permanent injunctions, arguing that the state's
plan would violate the agreement, was contrary to state law, would
impede their access to the court, and would infringe various
constitutional rights of Alaska prisoners.  In January 1995 the
superior court denied Cleary's motion for a preliminary injunction. 
By February the state had selected 206 prisoners for transfer and
moved them to Arizona.
          After allowing extensive discovery and holding
evidentiary hearings, the superior court denied Cleary's motion for
a permanent injunction, concluding that the classification criteria
used to select prisoners for transfer to Arizona satisfied the
requirements of equal protection and procedural due process.  But
because it found that the state's contract with Corrections
Corporation of America omitted important aspects of the settlement
agreement, [Fn. 2] the court conditioned its approval of the
transfer on the Arizona facility's compliance with the terms of the
          The state appeals from the portion of the court's order
that requires the Arizona prison to comply with the settlement
agreement.  Cleary cross-appeals the superior court's order
declining to enjoin the transfer of state prisoners to Arizona. 
     A.   Standard of Review
          The settlement agreement's scope and effect raise
questions of contract law that we review de novo. [Fn. 3] 
     B.   Issues on Appeal
          The state contends that the settlement agreement does not
extend to privately operated contract facilities.  According to the
state, an order previously entered by the superior court in this
litigation resolved this point.  In 1986 the superior court denied
a motion by the state prisoners housed in federal facilities --
members of subclass C in the pending class action -- to enjoin the
state from transferring prisoners to a state-run facility in
Minnesota.  The superior court ruled that conditions at the
Minnesota prison were beyond the scope of the class action and thus
did not violate prisoners' rights under subclass C's partial
settlement agreement.  The state insists that this ruling is now
the law of the case and so precludes the court from requiring the
Arizona facility to comply with the terms of the settlement
agreement.  The state independently contends that the agreement
cannot properly be extended to the privately operated Arizona
prison, because the agreement's express terms limit its application
to conditions in prison facilities owned or directly operated by
the state.
          Cleary responds that the 1986 ruling is not
determinative.  According to Cleary, inmates held in Arizona are
parties to the settlement agreement and, as such, are entitled to
its protections.  Moreover, because the settlement agreement
expressly required court approval of the state's plan to alleviate
overcrowding by transferring prisoners to Arizona, Cleary reasons
that the agreement gave the court power to order compliance with
the agreement as a condition of approving the proposed transfer.  
          1.   The law of the case did not preclude the court from
ordering the Arizona facility to comply with the settlement

          In advancing its law-of-the-case theory, the state
focuses on the broad phrasing of the superior court's 1986 order,
which, according to the state, established that "issues regarding
the housing of prisoners in correctional facilities located in
other states that are not owned or operated by the State of Alaska
or the [Federal Bureau of Prisons] are not included in the claims
brought by Subclasses A, B or C and are thus not properly before
the court in this case."  According to the state, "[t]his is the
law of the case which the trial court was required to follow."
          The doctrine of the law of the case is a matter of
judicial policy [Fn. 4] and describes "the practice of courts
generally to refuse to reopen what has been decided," [Fn. 5] but
does not limit their power to do so. [Fn. 6]  Moreover, the policy
against reconsidering issues adjudicated in a prior appeal [Fn. 7]
or issues "directly involved with or 'necessarily inhering'" in a
prior decision applies only if there has been "a final judgment
. . . with respect to the issues at hand." [Fn. 8]
          In the prior litigation at issue here, Alaska prisoners
housed in federal prisons moved to prevent transfer of prisoners to
a state-run facility in Minnesota on grounds that transfer would
violate an agreement governing the treatment of subclass C members.
The superior court denied the motion because it determined that
prisoners transferred to Minnesota would not be members of
subclass C, and that prison conditions in that state therefore
could not be challenged by subclass C members. [Fn. 9]  The 1986
order thus turned on subclass C members' standing and the fact that
membership in that subclass was limited to state prisoners held in
federal facilities.  It did not define the membership of subclass B
-- sentenced state prisoners held in state facilities, the
prisoners who are currently before the court -- and did not speak
to the question of whether locally held prisoners transferred to a
private Arizona facility continue to be state prisoners under the
terms of the settlement agreement now at issue.  Accordingly, the
1986 order did not amount to the law of the case controlling the
superior court's decision in the present controversy.  
          2.   The settlement agreement does not directly apply to
conditions at the privately operated Arizona facility.
          The state and Cleary both correctly observe that the
legal effect of the settlement agreement is a question of contract
law that this court decides independently. [Fn. 10]  Our decision
is guided by the goals expressed in Municipality of Anchorage v.
          The goal of the court is to enforce the
reasonable expectations of the parties. In determining the intent
of the parties the court looks to the written contract as well as
extrinsic evidence regarding the parties' intent at the time the
contract was made.  The parties' expectations are assessed by
examining the language used in the contract, case law interpreting
similar language, and relevant extrinsic evidence, including the
subsequent conduct of the parties.[ [Fn. 11]]
As one might expect, the state and Cleary claim to have had
different intents and expectations when the contract was made.
          The parties agree that the settlement agreement does not
mention private contract facilities, which were prohibited by law
when the parties agreed to the settlement. [Fn. 12]  The agreement
defines the state's obligations as extending only to inmates who
are "incarcerated in correctional facilities owned or operated by
the state."  Because the Arizona facility is neither owned nor
operated by the state, it is not directly regulated by the
agreement.  Cleary argues that the agreement's drafters did not
contemplate private contract facilities; but this argument only
supports our conclusion that the parties did not expect their
agreement to cover these facilities.
          Construing the settlement agreement to govern private
contract facilities would thus require reformation, which Cleary
has not requested.  Though the agreement itself provides for some
forward-looking flexibility in applying its terms, these provisions
do not support such a sweeping redefinition of its scope.  For
example, Section IX.B.2 states that the agreement "shall be
considered a final judgment of a prospective nature which is
binding upon the Department."  Section IX.B.4 specifies that "a
clear showing of material changes in circumstance . . . may give
rise to a request by either party that it be relieved from
judgment, and that all or some provisions of this agreement be
vacated and/or modified accordingly." And Section IX.B.4(d)
provides that "future questions regarding the implementation and
enforcement of this agreement shall be interpreted in a manner that
gives meaning to the intent expressed by the parties with
consideration for changes to Alaska's adult correctional facilities
that may exist at the time."  Yet none of these flexibility
provisions could reasonably justify reading the agreement as
directly regulating a category of facilities -- and a class of
inmates -- never addressed or contemplated by the contracting
parties. [Fn. 13]
          Because the settlement agreement only regulates
conditions in correctional facilities owned or operated by the
state, then, we hold that it does not directly cover Alaska inmates
incarcerated at the Central Arizona Detention Center.
          3.   The superior court properly required compliance
with the settlement agreement as a condition of approving the
state's plan to reduce overcrowding in Alaska prisons.
          Cleary argues that even if the settlement agreement does
not directly apply to conditions at the Arizona facility, it
empowered the superior court to require compliance as a condition
of approving the state's plan to reduce overcrowding.
          The settlement agreement sets forth population control
measures that remain in effect until emergency overcrowding
legislation is enacted. [Fn. 14]  Section VIII.E of the agreement
obliges the state to limit overcrowding and requires it to submit
mitigation plans for court approval if overcrowding becomes
chronic; when the state seeks court approval, prisoners may object
to the plan and "seek such other relief . . . as they deem
appropriate." Section IX additionally provides for future
monitoring, modification, and enforcement of the agreement and
broadly authorizes the superior court to "give[] meaning to the
intent expressed by the parties with consideration for changes to
Alaska's adult correctional facilities that may exist at the time." 
          After the parties entered their settlement agreement,
Alaska prisons became chronically overcrowded; when the state
failed to remedy the problem, the superior court declared the state
to be in contempt of the consent decree for failing to present a
plan to reduce overcrowding below the settlement agreement's
emergency caps.  In response, the state developed its plan to house
prisoners on a contract basis in the Corrections Corporation of
America's Arizona facility.  The original transfer involved more
than two hundred inmates; thereafter, the Arizona facility
continued to play an integral role in the state's efforts to
control overcrowding in Alaska, and hundreds of additional inmates
were transferred to Arizona.  Indeed, corrections officials who
testified before the superior court expressly acknowledged that the
department had found no other effective solution for overcrowding. 
The record thus amply supports the superior court's decision to
treat the Arizona transfers as the state's plan for reducing
overcrowding under the agreement.
          The state does not seriously dispute the court's decision
to treat the contractual arrangement for housing prisoners in
Arizona as the state's plan to mitigate overcrowding under Section
VIII.E.7 of the settlement agreement, which specifically required
court approval. [Fn. 15]   But the state nonetheless insists that
the scope of the court's approval authority is quite narrow. 
Because Section VIII.E.7 deals exclusively with overcrowding, the
state reasons, its grant of approval authority "should also be
limited to whether the plan is likely to produce the intended
result of reducing prisoner populations."
          But the state's proposed reading of Section VIII.E.7 is
unreasonably narrow, for it would reduce the court's power of
approval to a simple process of counting heads.  By so doing, it
would render meaningless the provision's express language allowing
prisoners to object to the plan and seek other appropriate relief,
which necessarily implies the settlement agreement's intent to
grant the court considerable discretion in exercising its approval
authority.  Here, because the state's mitigation plan would
inevitably have long-range effects on a large number of inmates who
were or would be covered by the settlement agreement, and because
the plan's primary purpose was to fulfill the state's obligations
under the agreement itself, the superior court did not abuse its
discretion by making its approval contingent on the state's
continued compliance with agreement in the Arizona prison, even
though the agreement did not directly extend to privately operated
          This is not to say that the superior court was bound to
order compliance with the agreement in Arizona, or even that its
understandable desire to ensure substantial compliance compelled it
to order literal compliance with all of the agreement's original
requirements.  In holding that the superior court did not abuse its
discretion, we emphasize that the forward-looking flexibility
provisions of the settlement agreement, discussed above, make it
clear that the superior court had broad discretion to tailor its
application of the settlement agreement to the particular needs and
circumstances that the prisoners, the correctional staff, and the
state would face upon transfer of prisoners to the privately
operated Arizona facility.  
          To the extent that the state argues here that application
of the settlement agreement to the Arizona facility is burdensome
in uncontemplated ways, and to the extent that the superior court
may not have fully considered the possibility of tailoring the
agreement to the particular conditions in Arizona, the state may
request appropriate modifications upon return of this case to the
superior court, and the court will have discretion to consider any
such requests in the exercise of its continuing supervisory
          As matters currently stand, however, because the superior
court had discretion to require compliance with the settlement
agreement at the Arizona facility and because the state has failed
to demonstrate an abuse of that discretion here, we affirm the
court's ruling.
     C.   Issue on Cross-Appeal
          On cross-appeal, Cleary contends that the superior court
erred in deciding that the process used to classify prisoners for
transportation to Arizona was constitutional.  The state responds
that question is moot.  We agree.  
          Cleary does not dispute that this issue arose in the
context of an unsuccessful request for injunctive relief.  Because
the superior court denied an injunction, the prisoners originally
affected by the transfer decision have already been moved to
Arizona.  Moreover, it appears that the disputed classification
procedures used by the state for the first wave of transfers are no
longer in effect.  The question presented by Cleary on cross-
appeal, then, is functionally moot.
          Although we generally decline to decide moot questions,
[Fn. 16]  we sometimes apply an exception when deciding a moot
question would be in the public interest. [Fn. 17]  To determine
whether this exception applies, we consider the importance of the
issue and assess the likelihood that it might arise again but
repeatedly evade review. [Fn. 18]  These criteria counsel against
applying the exception here. [Fn. 19]  
          The general type of challenge raised by Cleary is
certainly capable of repetition.  But the particular classification
procedures challenged in a future case would likely differ
significantly from the procedures disputed in the present case. 
Public policy therefore does not strongly favor resolving the
issues addressed in the briefing and record before us.  Moreover,
the settlement agreement ordinarily allows compliance challenges to
be prosecuted individually by prisoners who have exhausted all
available administrative remedies. [Fn. 20]  A record produced in
an individual case brought after proper exhaustion of
administrative remedies would lend itself more readily to proper
application of the procedural due process analysis.  And finally,
because the mootness problems here stem in part from the fact that
Cleary narrowly sought injunctive relief without also requesting a
declaratory judgment, it is not clear that future challenges would
continue to evade review.  
          Finding no sound reason to apply the public policy
exception, we decline to reach the merits of the cross-appeal,
because they are moot.
          We AFFIRM the superior court's judgment.


Footnote 1:

     On cross-appeal, the prisoners claim that the court erred in
denying an injunction.  But we decline to reach this issue, because
it is moot.  

Footnote 2:

     Specifically, the superior court found that the state's
contract to hold prisoners in Arizona omitted most of the
settlement agreement's provisions concerning operations and
facilities, failed to provide required vocational and
rehabilitative programs, and neglected to ensure procedural rights
in classification, administrative segregation, discipline, and
grievances as set forth in the agreement.

Footnote 3:

     See Hertz v. State, Dep't of Corrections, 869 P.2d 154, 154
(Alaska 1994); Logghe v. Jasmer, 686 P.2d 694, 697 (Alaska 1984)
(indicating that consent decrees are construed following normal
principles of contract interpretation).

Footnote 4:

     See Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska 1979);
see also West v. Buchanan, 981 P.2d 1065, 1067 (Alaska 1999); Price
v. S.S. Fuller, Inc., 639 P.2d 1003, 1008 n.12 (Alaska 1982).

Footnote 5:

     West, 981 P.2d at 1067 (quoting Stepanov, 594 P.2d at 36).

Footnote 6:

     See Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220,
1228-29 (Alaska 1992).

Footnote 7:

     See Dewey v. Dewey, 969 P.2d 1154, 1159 (Alaska 1999); see
also Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977).

Footnote 8:

     Wolff, 560 P.2d at 763 (citations omitted).

Footnote 9:

     According to the 1986 order, "Alaskan prisoners attempting to
challenge herein their transfer to the Minnesota state-operated
facilities are not members of Subclass C."  The 1986 order stated
that reading the Subclass C Settlement Agreement as including
prisoners transferred to out-of-state facilities not operated by
the Federal Bureau of Prisons would require reformation of the
agreement, which the court declined to do.

Footnote 10:

     See supra note 3.

Footnote 11:

     922 P.2d 248, 255-56 (Alaska 1996) (citations omitted).

Footnote 12:

     See Former AS 33.30.031 (1990) (prohibiting the use of private
contract prison facilities).

Footnote 13:

     In this respect, we agree with the reasoning of the 1986 order
which declined to read the subclass C settlement agreement as
having broad application to out-of-state facilities other than
those operated by the Federal Bureau of Prisons.

Footnote 14:

     The parties acknowledge that because legislation as described
in Section VIII.A and VIII.B has not been enacted, Section VIII.E
remains in effect.

Footnote 15:

     Section VIII.E.7 of the settlement agreement expressly
requires the state, in the event of chronic overcrowding, to
"present for approval a plan which provides for the reduction of
the inmate population to below maximum capacity in each of the
Department's facilities within 30 days, and a plan which will
maintain the population level at or below maximum capacity."

Footnote 16:

     See generally Witt v. Watkins, 579 P.2d 1065, 1071 n.19
(Alaska 1978); Etheredge v. Bradley, 502 P.2d 146, 153 (Alaska

Footnote 17:

     See O'Callaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000);
Legislative Council v. Knowles, 988 P.2d 604, 606 (Alaska 1999);
Krohn v. State, Dep't of Fish & Game, 938 P.2d 1019, 1021 (Alaska
1997); Tulkisarmute Native Community Council v. Heinze, 898 P.2d
935, 940 n.7 (Alaska 1995).

Footnote 18:

     See Legislative Council, 988 P.2d at 606 (citing Department of
Health & Soc. Servs. v. Alaska State Hosp. & Nursing Home Ass'n,
856 P.2d 755, 766 (Alaska 1993)); Krohn, 938 P.2d at 1021; Hayes v.
Charney, 693 P.2d 831, 834 (Alaska 1985).

Footnote 19:

     The prisoners have neither briefed the mootness issue nor
urged us to apply the public policy exception.

Footnote 20:

     Section IX.B.2 of the settlement agreement states that before
filing an action alleging noncompliance with the settlement
agreement "[a]n inmate must first exhaust the administrative
grievance procedure set out in Section VII.E."  Under Section
VII.E.1 "[i]ssues involving the propriety of classification and
disciplinary decisions may be raised only through an appeal of a
classification or disciplinary action, as provided in 22 AAC 05.260
and 22 AAC 05.480, respectively."