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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cleary v. Smith (11/10/2006) sp-6068

Cleary v. Smith (11/10/2006) sp-6068, 146 P3d 997

     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,


KENEZUROFF, HARRY MORGAN, ) Supreme Court No. S-11646
and ERNEST MORGAN, on behalf of )
themselves and all other persons who ) Superior Court No.
are now or will be similarly situated, ) 3AN- 81-5274 Civil
Appellants, )
v. )
ROBERT SMITH, Commissioner, )
Department of Health and Social Services; )
ROGER ENDELL, Director, Division of ) O P I N I O N
Adult Corrections, Department of Health )
and Social Services; VERNON CAULKINS, )
Assistant Director, Division of Adult )
Corrections, Department of Health and Social )
CONRAD MILLER, all of the Alaska Parole )
Board; SAMUEL TRIVETTE, Executive )
Director of the Alaska Board of Parole, and )
their subordinates, employees and agents, )
Appellees. ) No. 6068 - November 9, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:   Donald  F.  Stumpf,  pro   se,
          Seward.   John K. Bodick, Assistant  Attorney
          General,   Anchorage,   David   W.   M rquez,
          Attorney General, Juneau, for Appellees.

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

          PER CURIAM

          In   1981  a  group  of  adult  prisoners  confined  in
correctional  institutions owned or  operated  by  the  State  of
Alaska  or  the Federal Bureau of Prisons (FBOP) filed  a  class-
action lawsuit challenging prison conditions under the Alaska and
United  States  Constitutions.  The class was eventually  divided
into  three  subclasses.   Subclass C  consisted  of  all  Alaska
prisoners  who  are now or who will be confined  in  institutions
which  are  owned or operated by the FBOP.  Subclass C  prisoners
alleged   that   their  confinement  in  FBOP  institutions   was
unconstitutional  because  FBOP  conditions   were   unequal   to
conditions  in institutions operated by the State of Alaska.   In
1983  the  superior  court approved a settlement  agreement  with
respect to subclass C.
          Donald  Stumpf is a prisoner currently residing in  the
Spring Creek Correctional Facility in Seward.  The State does not
contest  that Stumpf was a member of subclass C.  In  April  2004
Stumpf  received notice of his classification for transfer  to  a
private detention center in Arizona.  Stumpf filed a motion for a
preliminary  injunction, arguing that the subclass  C  settlement
agreement  prevented  the  State  from  transferring  him.    The
superior court denied Stumpfs motion and Stumpf appeals.
          The superior courts conclusions resolve the contentions
now  made by the parties on appeal to this court.  We agree  with
the courts interpretation of the settlement agreement and set  it
out in relevant part at this point.1
          Plaintiffs,  who were members of Subclass  C,
          consisting  of  the former internees  of  the
          federal  prison system outside Alaska,  argue
          they  have a property interest in confinement
          in Alaska, by virtue of their 1983 settlement
          agreement,  which reads in relevant  part  at
          A(1), (4):
                    (1)  Defendants will
               return     all     Alaska
               prisoners housed  in  the
               FBOP,     who     request
               transfer to the State  of
               Alaska   to   serve   the
                    balance   of   their
               sentence,  no later  than
               December 31, 1987, on the
               condition that defendants
               receive    appropriations
               sufficient    for     the
               construction     of     a
               correctional     facility
               within   the   State   of
               Alaska capable of housing
               approximately         300
                    . . . .
                    (4)     Once    such
               funding  is obtained  and
               as soon as possible after
               the correctional facility
               is constructed, but in no
               event later than December
               31,      1987,     Alaska
               prisoners       presently
               confined  in . .  .  FBOP
               prisons, shall be  housed
               in           correctional
               facilities   within   the
               State of Alaska . .  .  .
               It  is  anticipated  that
               only  the rare or  unique
               case     will     require
               classification   to    an
               institution  operated  by
               the       FBOP      after
               1987 . . . .
          . . . .
               As  a matter of contract interpretation,
          the   quoted  language  does  not  create   a
          contract  right in the returning  inmates  to
          incarceration    in    Alaska    under    all
          circumstances.  The reference to serving  the
          balance  of  sentences in  Alaska  is  merely
          descriptive  of  the request  that  triggered
          transfer.   It cannot reasonably be construed
          to  afford  returnees  from  outside  federal
          prisons rights, superior to all other Alaskan
          prisoners, to completion of sentences  within
               Read   as   a  whole,  the  Subclass   C
          Agreement responded to a particular evil, the
          placement  of Alaskan prisoners in a  federal
          prison   system,  that  was  deemed  by   all
          concerned to be inappropriate.  Once Subclass
          C  prisoners returned to Alaska,  their  only
          remaining  right under the agreement  was  to
          avoid   future   reclassification   to   FBOP
          institutions.   Otherwise, they  merged  into
          the  general  Alaska prison  population,  and
          their  rights  must be determined  under  the
          [Final  Settlement Agreement],  just  as  all
          other  Alaskan  prisoners.   The  Subclass  C
          settlement  agreement  cannot  reasonably  be
          read to grant them rights greater than others
          in    the   Alaska   prison   system.    More
          particularly,  they do not have  a  right  as
          former FBOP internees to avoid classification
          to   an   out-of-state  prison  occupied   by
          hundreds of other Alaskan prisoners, which is
          not an FBOP institution.
          Superior  Court Judge Douglas J. Serdahelys 1986  order
also   reached  the  conclusion  that  the  Settlement  Agreement
pertaining to Subclass C cannot fairly be interpreted .  .  .  to
apply  to that category of Alaska prisoners . . . transported  to
[non-FBOP]  prison facilities.  Five years ago we indicated  that
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.2   Today  we  confirm  that
interpretation  and  conclude  that  the  subclass  C  settlement
agreement  does not apply to the transfer of subclass C prisoners
to non-FBOP facilities.
          We AFFIRM the superior courts denial of Stumpfs motion.
          In the Supreme Court of the State of Alaska

Michael Cleary, et al.,         )
                                ) Supreme Court No. S-11646
                                   Appellants, )
                   v.           )            Order
Robert Smith, et al.,           )
                                    Appellees.  )        Date  of
Order: 11/9/06
Trial Court Case # 3AN-81-05274CI

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

     On   consideration  of  the  Motion  for  Publication  filed

     It is Ordered:

     1.   The Motion for Publication is Granted.

     2.   Memorandum  Opinion and Judgment No.  1262,  issued  on
          October  4, 2006, is withdrawn and Opinion No. 6068  is
          issued in its place.

     Entered at the direction of the court.

                                   Clerk of the Appellate Courts

                                   Marilyn May
cc:  Supreme Court Justices
     Judge Suddock
     Trial Court Appeals Clerk


     John K Bodick
     AGO Criminal Division
     310 K Street Suite 403
     Anchorage AK 99501

     Donald Stumpf
     Spring Creek Correctional
     P.O. Box 5001
     Seward AK 99664-5001
     1     The  quoted portion of the superior court opinion  has
been edited to conform with the formal standards of this court.

     2    Smith v. Cleary, 24 P.3d 1245, 1249 n.13 (Alaska 2001).

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