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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Clark v. State, Dept. of Corrections (04/20/2007) sp-6117

Clark v. State, Dept. of Corrections (04/20/2007) sp-6117, 156 P3d 384

     Notice:   This opinion is subject to correction  before
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) Supreme Court No. S- 12135
Appellant, )
) Superior Court No.
v. ) 3AN-04-11093 CI
Appellee. ) No. 6117 - April 20, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Phillip R. Volland, Judge.

          Appearances:   Richard Lance Clark,  pro  se,
          Anchorage.    John   K.   Bodick,   Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.
          I.   Richard Clark, an Alaska state prisoner, challenges his
transfer  to  Florence  Correctional Center  in  Arizona  on  the
grounds  that it violated his right to rehabilitation by  denying
him  visitation  with  his family and alcohol  treatment.   While
Clarks  case was pending before this court, the court of  appeals
ordered  Clark  to  be  resentenced on  his  underlying  criminal
conviction.   Because  the department of corrections  transferred
Clark  back to Alaska pursuant to the court of appealss decision,
Clarks  appeal  has  become moot.  Accordingly,  we  dismiss  the
          Richard  Clark, a prisoner of the State of  Alaska,  is
currently  serving  a  sixteen-year  sentence  with  eight  years
suspended, for assault and arson.  Clark is scheduled for release
in  February  2009.  Clark began serving his sentence  at  Spring
Creek  Correctional Center (Spring Creek) in  Seward.   In  April
2004  the Department of Corrections considered transferring Clark
to  an Arizona prison facility.1  The Spring Creek classification
committee  informed  Clark  that  he  was  being  considered  for
transfer  to  an  out-of-state facility  in  order  to  alleviate
overcrowding and then conducted a classification hearing.2
          Clark  was  present  at  the  hearing.   The  committee
inquired  into any visitation Clark received from family.   Clark
informed the committee that while incarcerated he received visits
from family approximately every other month, and that he spoke to
his  family  over the telephone twice per week.  He  also  stated
that  these  visits  and  phone  calls  were  important  to   his
rehabilitation.   Clark asserted that alcohol treatment  was  his
primary  rehabilitative need.  He informed the committee that  he
was  appealing  his  sentence, and that he  had  been  previously
incarcerated  for separate convictions in Ketchikan  and  Palmer.
Based  on the foregoing, the committee determined that an out-of-
state  transfer  would  not  impede Clarks  rehabilitation.   The
committee recommended Clark for transfer to Florence Correctional
Center in Arizona.
          The  superintendent  of  Spring Creek  approved  Clarks
transfer.   The  classification committee  then  notified  Clark.
Clark  filed a department appeal of the transfer order.   In  his
appeal,  Clark  argued  the following:  (1)  the  Native  Village
Council  of Clarks Point recommended that Clark remain in  Alaska
and  eventually be paroled to Clarks Point for alcohol treatment;
(2)  as  an  Alaska Eskimo he maintained a traditional lifestyle;
(3)  his  father was ill; (4) the pro se appeal of  his  sentence
would benefit from his presence in Alaska; (5) he was enrolled in
a  computer class and had applied for a job at Spring Creek;  (6)
the transfer affected Clarks visitation with family and his right
to  rehabilitation; (7) he was not informed of the transfer until
after  he  had signed the notice of classification; and  (8)  the
judge  who  sentenced  Clark  had  recommended  Clark  serve  his
sentence in Alaska.
          Deputy  Commissioner of Corrections  Donald  Stolworthy
rejected  Clarks appeal.  Stolworthy determined that the transfer
would not substantially impair Clarks access to rehabilitation or
treatment,  that Clark failed to show any rehabilitative  effects
of any visitation he had received, and that Clarks prior criminal
history and previous incarceration indicated Clark did not have a
predominantly   rural   lifestyle.    Clark   then    filed    an
administrative  appeal to the superior court.   In  October  2005
Clark was transferred to Florence Correctional Center in Arizona.
          Shortly thereafter, the superior court issued an  order
affirming  the transfer.  The court found that the classification
committee  had addressed each of Clarks rehabilitative  concerns.
The  courts order noted that Clark presented no evidence  that  a
potential  decrease in visitation would substantially impair  his
          rehabilitation:  Clark would remain eligible for work and
educational rehabilitation programs in Arizona, Clarks wish to be
paroled  to  Clarks  Point could be addressed from  Arizona,  and
Clark  had  failed  to  show  that his native  lifestyle  somehow
precluded his transfer.  Clark filed an appeal before this court.
          While  Clarks appeal was pending, the court of  appeals
issued  Memorandum  and Opinion No. 5125 in  October  2006.   The
court  of  appeals  ordered  that Clark  be  resentenced  on  his
underlying  criminal conviction.  Pursuant to that decision,  the
department  transported  Clark back to Alaska  for  resentencing.
The state then filed an emergency motion to dismiss Clarks appeal
and  to  vacate oral argument.  We denied the states  motion  but
requested  that  the  parties be prepared  to  discuss   mootness
issues  at oral argument.  Oral argument was held on November  8,
          Because  we  now  conclude that Clarks  appeal  of  his
transfer  decision is moot, we do not decide the  merits  of  his
          We apply our independent judgment to issues of mootness
because as a matter of judicial policy, mootness is a question of
     A.   Clarks Appeal of His 2004 Transfer Decision Is Moot.
          We will not generally decide questions of law where the
facts  have  rendered the legal issues moot.4  A  claim  is  moot
where  a decision on the issue is no longer relevant to resolving
the  litigation, or where it has lost its character as a present,
live  controversy,5  that is, where a party bringing  the  action
would not be entitled to any relief even if he or she prevailed.6
          The  department  contends that because  Clark  will  be
resentenced  and  reclassified prior  to  any  transfer  back  to
Arizona, his appeal should be dismissed.  As noted by counsel for
the department in both its emergency motion to dismiss the appeal
and   at   oral   argument,  the  2004  classification   decision
transferring  Clark  to  Arizona has  been  vacated.   Clark  was
transferred  back  to  Alaska in late  October  2006.   Following
resentencing, Clark may be classified and housed in Alaska or  he
may  be  classified for transfer to Arizona under a  new  out-of-
state   transfer  determination.   In  either  case,   the   2004
administrative decision now before us on appeal would  no  longer
be  the  operative decision that causes Clark  to  be  housed  in
Arizona.   Clarks  appeal  of  his  2004  transfer  decision   is
therefore moot.
     B.   The  Public Interest Exception Does Not Apply to Clarks
          We  may  still  review issues that are moot  under  the
public   interest  exception  to  the  mootness  doctrine.7    In
determining  whether  the public interest exception  applies,  we
consider:  (1)  whether  the  disputed  issues  are  capable   of
repetition, (2) whether application of the mootness doctrine will
repeatedly  circumvent review of the issues, and (3) whether  the
issues are of important public interest.8  These factors are  not
strictly determinative in and of themselves and the determination
          of whether to review a moot issue is left to this courts
          Turning to the first of the three factors, it is  clear
that   the  issues  raised  by  Clark  are  plainly  capable   of
repetition.   Numerous cases involving challenges to out-of-state
prison  transfers  have  come before us in  recent  years.10   We
further  recognize  that  there are  a  large  number  of  Alaska
prisoners  routinely housed in Arizona.  These  prisoners  remain
separated  by enormous geographic distance and economic  barriers
from  their families, community support networks, and loved ones.
Clarks  claim  of  a  violation of his  right  to  rehabilitation
therefore is one that is frequently implicated.
          The  third factor is also satisfied, because the issues
Clark  raises in his appeal are plainly of public importance.   A
prisoners  right  to  rehabilitation  is  found  in  the   Alaska
Constitution,11 and is therefore within the public interest.  The
department  is  required to consider any impact  on  a  prisoners
right  to rehabilitation when considering transfer to an  out-of-
state  facility.12   We have repeatedly noted the  importance  of
visitation within the broader right to rehabilitation, as well as
the  impact  of  visitation on prisoners and to  communities.  In
Brandon we noted:
               Visiting is the most direct link for the
          inmate  with the world left behind.   Indeed,
          visiting  is  indispensable to any  realistic
          program   of   rehabilitation.    .    .    .
          Prison  visits  have long been recognized  as
          critically  important to inmates as  well  as
          the  communities  to which the  inmates  will
          ultimately return.[13]
We  recognize the importance of visitation as one component of  a
prisoners rehabilitation and its impact in assisting prisoners in
the  rehabilitative process. Alaska prisoners, particularly those
from  bush  Alaska,  face unique and extraordinary  hardships  in
maintaining family and community ties  ties that are important to
facilitating prisoners rehabilitation.14
          Analysis  of  the second factor, however, leads  us  to
conclude that this appeal is moot.  Although the issues raised in
Clarks  appeal  are  of  public importance  and  are  capable  of
repetition,  nothing in the application of the mootness  doctrine
to   Clarks  case  indicates  that  the  issues  he  raises  will
repeatedly  circumvent review.  Under our decision in Brandon  v.
State,  prisoners maintain a clear right to superior court review
of  their  transfer decisions where their right to rehabilitation
is  impacted.15  Should the department conduct a new, independent
classification hearing, Clark maintains the right to  appeal  any
subsequent transfer decision.16  Similarly, other Alaska prisoners
who  are  classified for transfer to Arizona  may  contest  their
transfer decisions.  Thus, there is no reason to believe that the
issues raised in this case will repeatedly circumvent review.
          V.   CONCLUSION
          Because  Clarks 2004 classification decision  has  been
superceded  by  recent  events, and Clark has  been  returned  to
          Alaska, we conclude that Clarks appeal is moot.  Because Clark
retains   the  right  to  appeal  any  future  transfer  decision
implicating  his  constitutional  right  to  rehabilitation,  the
public  interest  exception  to  mootness  does  not  apply.   We
therefore DISMISS Clarks appeal as moot.
     1     The  state  routinely  houses  prisoners  in  contract
facilities under a plan to reduce overcrowding of Alaska prisons.
See Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).

     2     It  is unclear from the record when Clark was notified
of  the proposed transfer.  Classification staff are required  to
provide   prisoners  with  at  least  48  hours   notice   of   a
classification hearing unless notice is waived by  the  prisoner.
There  is  no indication that Clark waived the notice requirement
in this case.

     3     Akpik  v. State Office of Mgmt. and Budget,  115  P.3d
532, 534 (Alaska 2005).

     4    Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773, 776
(Alaska  2001) (quoting OCallighan v. State, 920 P.2d 1387,  1388
(Alaska 1996)).

     5     Municipality of Anchorage v. Baxley, 946 P.2d 894, 899
(Alaska 1997).

     6     Maynard  v.  State Farm Mut. Auto Ins. Co.,  902  P.2d
1328, 1329 n.2 (Alaska 1995).

     7     Taylor  v.  Gill St. Invs., 743 P.2d 345, 347  (Alaska

     8    Id. (citing Hayes v. Charney, 693 P.2d 831, 834 (Alaska

     9     Hayes, 693 P.2d at 834.

     10     See,  e.g.,   Cleary v. Smith, 146 P.3d  997  (Alaska
2006); Carlson v. Renkes, 113 P.3d 638 (Alaska 2005); Brandon  v.
State, Dept of Corrs., 938 P.2d 1029 (Alaska 1997).

     11    Alaska Const. art. I, 12 (Criminal administration shall
be based on . . . the principle of reformation.).

     12     AS  33.30.061(a) allows the commissioner to  place  a
prisoner   in   an   out-of-state   correctional   facility.   AS
33.30.061(b)  allows  the  commissioner  of  the  department   to
designate a prisoner for transfer only upon a determination  that
the rehabilitation or treatment needs of the prisoner will not be
substantially  impaired.  See also 22 Alaska Administrative  Code
05.252(a)  (prisoner may be transferred upon  determination  that
rehabilitation or treatment not substantially impaired).

     13    938 P.2d at 1032 n.2 (quoting 2 Michael Mushlin, Rights
of  Prisoners  12.00 (2d ed. 1993) and Kentucky Dept of Corrs. v.
Thompson, 490 U.S. 454, 468 (1989) (Marshall, J., dissenting)).

     14      For   those  reasons,  we  are  troubled  by  Clarks
contentions  that  FCC prison officials refused to accommodate  a
visitation request made by Clarks sister following her arrival at
Florence  Correctional  Center in Arizona  after  traveling  from
Dillingham, Alaska.  Although we recognize the strain  placed  on
prison  administrators and the unique security needs  surrounding
visitation  requests,  the  importance  of  facilitating   family
visitation cannot be denied.  Prison officials and administrators
must  ensure  that  their operating policies and  procedures  and
prison  visitation rules take into account the unique  challenges
Alaska  families  regularly encounter when  attempting  to  visit
family members who are incarcerated in Arizona.

     15    Id. at 1033.

     16     Requiring  Clark  to commence a new  internal  appeal
process  once any subsequent transfer decision is issued does  of
course  delay  consideration  of the  merits  of  Clarks  general
claims. In effect, he could face a longer period of incarceration
in  Arizona  and increased costs associated with any filing  fees
incurred by a second round of appellate review. While this  delay
may be troubling, we expect timely department and judicial review
of any future claims by Clark negates any concern that the issues
will evade review.

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