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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barber v. State, Dept. of Corrections (3/17/2017) sp-7159

Barber v. State, Dept. of Corrections (3/17/2017) sp-7159

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                        

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



JAMES  E.  BARBER,                                             )  

                                                               )          Supreme  Court  Nos.   

                     Appellant,                                )          S-15645/15655/15836   

                                                               )          (Consolidated)  

           v.                                                  )  

                                                                                                                                         

                                                               )          Superior Court No. 3AN-81-05274 CI  

STATE OF ALASKA,  

                                                               )  

DEPARTMENT OF  

                             

                                                                                              

                                                               )          O P I N I O N  

CORRECTIONS,                                                   )  

                                                               )                                               

                                                                          No. 7159 - March 17, 2017  

                     Appellee.                                 )  

                                                                

_______________________________ )
  

                                                               )
  

                         

BILLY JACK WIGLESWORTH,                                        )
  

                                                               )
  

                     Appellant,                                )
  

                                                               )
  

           v.                                                  )  

                                                               )  

                    

STATE OF ALASKA,                                               )  

                             

DEPARTMENT OF                                                  )  

CORRECTIONS,                                                   )  

                                                               )
  

                     Appellee.                                 )
  

                                                                

_______________________________ )
  


----------------------- Page 2-----------------------

MATTHEW  M.  MOORE,                                                     )
  

                                                                        )
  

                        Appellant,                                      )
  

                                                                        )
  

            v.                                                          )  

                                                                        )  

                       

STATE OF ALASKA,                                                        )  

                                 

DEPARTMENT OF                                                           )  

CORRECTIONS,                                                            )  

                                                                        )
  

                        Appellee.1                                      )
  



_______________________________ )
  

                                                                         



                        Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                                           

                        Judicial District, Anchorage, John Suddock, Judge.  

                                                                                                                        



                        Appearances: James E. Barber, pro se, Anchorage, Billy Jack  

                                                                                                                             

                        Wiglesworth, pro se, Wasilla, and Matthew M. Moore, pro  

                                                                                                                               

                        se, Palmer, Appellants.  John K. Bodick, Assistant Attorney  

                                                                                                                     

                        General,  Anchorage,  and  Craig  W.  Richards,  Attorney  

                                                                                                                   

                        General, Juneau, for Appellees.  

                                                                                    



                        Before:            Stowers,  Chief  Justice,  Maassen  and  Bolger,  

                                                                                                                      

                        Justices. [Fabe and Winfree, Justices, not participating.]  

                                                                                                     



                        STOWERS, Chief Justice.  

                                                           



I.          INTRODUCTION  



                        Beginning in 2013 a number of pro se prisoners moved for the superior  

                                                                                                                                              



            1           Theappellants              in these cases filed under the caption of the                              1981class action     



Cleary et al. v. Smith et al.                     "Because [they] [are] not authorized to represent the class,                                     

we have re-named [these] case[s]."   Hertz v. State, Dep't of Corr.                                                     (Hertz II), 230 P.3d   

663, 663 n.1 (Alaska 2010) (internal cross-references omitted).                                    



                                                                            -2-                                                                    7159
  


----------------------- Page 3-----------------------

                                                                                                                                2  

court to enforce the terms of the 1990 Final Settlement Agreement and Order                                                       in the   



                    3  

Cleary  case,                                                                                                        

                      a class action by inmates regarding prison conditions.  In 2014 Superior  



                                                                                                                                    

Court Judge John Suddock dismissed the prisoners' motions, concluding that the Final  



                                                                                                                                    

Settlement Agreement was unenforceable because it had been terminated in 2001 when  



                                                                                                                          

Superior Court Judge Elaine M. Andrews found that the requirements for termination  



                                                                                                                          

had been met.  But Judge Andrews did not terminate the Final Settlement Agreement  



                                                                                                                                    

because  she  determined  that  the  Alaska  Prison  Litigation  Reform  Act  was  only  



                                                                                                                           

constitutional if it did not terminate the Final Settlement Agreement.  Judge Andrews's  



                                                                                                                              

2001 Order became the law of the case when it was issued.  Because Judge Suddock  



                                                                                                        

failed to make required findings when reversing the law of the case, we reverse Judge  



                                                                                         

Suddock's Order and remand for further proceedings.  



                                    

II.        FACTS AND PROCEEDINGS  



                                                    

           A.         The Cleary Case  



                                                                                                                                  

                      Smith v. Cleary describes the Cleary Final Settlement Agreement:  



                                                                                                            

                                           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  



           2          Also  referred  to  as  the  consent  decree.  



           3          Final       Settlement          Agreement             and      Order,        Cleary         v.    Smith,        No.  



3AN-81- 05274  CI  (Alaska  Super.,  Sept.  21,   1990).  



                                                                    -3-                                                             7159  


----------------------- Page 4-----------------------

                                    beincarcerated                           incorrectional                         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.                                                             4 



                                    The Final Settlement Agreement "ordinarily allows compliance challenges  

                                                                                                                                                                                                             



to   be  prosecuted   individually   by   prisoners   who   have   exhausted   all  available  

                                                                                                                                                                                                              

administrative remedies."5  

                                         



                  B.                Alaska Prison Litigation Reform Act And 2001 Superior Court Order  

                                                                                                                                                                                                                        



                                    In 1999theAlaskaLegislatureenactedtheAlaskaPrisonLitigation Reform  

                                                                                                                                                                                                                     



Act (APLRA), AS 09.19.200, which established standards for terminating prospective  

                                                                                                                                                                                                          



reliefunder the Final Settlement Agreement and any other litigationchallengingprisoner  

                                                                                                                                                                                                                    



conditions in Alaska.  Alaska Statute 09.19.200(c) provides:  

                                                                                                                                          



                                    Prospective relief ordered in a civil action with respect to  

                                                                                                                                                                                               

                                    correctional facility conditions, including prospective relief  

                                                                                                                                                                                       

                                    ordered under a consent decree, regardless of whether that  

                                                                                                                                                                                           

                                    civil action was filed or the relief ordered before or after  

                                                                                                                                                                                        



                  4                 Smith v. Cleary                           , 24 P.3d 1245, 1246-47 (Alaska 2001).                                                                       



                  5                 Id.    at    1251.     Administrative    remedies    are    set    out    in    the    Alaska  



Administrative Code and the State of Alaska Department of Corrections Policies and                                                                                                                                             

Procedures. See 22 Alaska Administrative Code (AAC) 05.185 (2016); State of Alaska,  

                                                                                                                                                                                                                     

D e p ' t                    o f            Co r r . ,                    P o l i c i e s                      &             P r o c e d u r e s                              8 0 8 . 0 3                      ( 2 0 0 6 ) ,  

http://www.correct.state.ak.us/corrections/pnp/pdf/808.03.pdf.  

                                                                                                                                                                           



                                                                                                                 -4-                                                                                                        7159
  


----------------------- Page 5-----------------------

                           August 30, 1999, shall be terminated upon the motion of the                                                      

                           defendant unless the court finds that there exists a current                                             

                           violation of a state or federal right . . . .                              



                           In2000         theDepartment                  moved to terminatetheFinalSettlementAgreement                                 

                                                           6   The plaintiffs opposed that motion and argued that the  

pursuant to AS 09.19.200(c).                                                                                                                                           

APLRA was unconstitutional.7  JudgeAndrews ruled that the APLRA was constitutional  

                                                                                                                                                  



provided that it only terminated the prospective effect of the Final Settlement Agreement  

                                                                                                                                                       

and not the Agreement itself.8                                She concluded that prospective relief under the APLRA  

                                                                                                                                                            

is limited to remedy violations of state or federal law.9  

                                                                                                   



                           In 2001 Judge Andrews held another hearing on the status of the Final  

                                                                                                                                                                  

Settlement Agreement.10                              The court-appointed compliance monitor reported that all  

                                                                                                                                                                       



matters referred to himwere resolved in conformity with the Agreement and that judicial  

                                                                                                                                                              



oversight was no longer necessary; the court then terminated active judicial supervision  

                                                                                                                                                      

in the case.11  

                           



                           Judge  Andrews  also  explained  that  the  majority  of  federal  courts  had  

                                                                                                                                                                     



terminated previouslyissued prisoner-rights consent decreesunder thefederalequivalent  

                                                                                                                                                         



             6             Decision   and   Order,  Cleary   v.   Smith,   No.   3AN-81-05274   CI,   at   2  



(Alaska Super., July 3, 2001).                                



             7            Id. at 2-3.  

                                       



             8            Id. at 3.
  

                                       



             9            Id.
  

                                  



             10           Id.
  

                                  



             11           Id.
  

                                  



                                                                                   -5-                                                                            7159
  


----------------------- Page 6-----------------------

                            12                                                                                                                        13 

of the APLRA.                    But she instead adopted the approach in                                     Gilmore v. California                       and  



decided that the APLRA should be construed to leave the Final Settlement Agreement                                                          



intact while restricting the court's authority to order continuing prospective relief under                                                            

                              14      Judge  Andrews  noted  that  the  Gilmore  court  "described  the  

the   Agreement.                                                                                                                                          



consideration of whether the termination of consent decrees violates the separation of  

                                                                                                                                                             



powers doctrine as a 'grave constitutional question whether Congress can command the  

                                                                                                                                                            

courts retroactively to terminate a final judgment.' "15                                                   Judge Andrews agreed with  

                                                                                                                                                        



Gilmore that "it would pose a grave constitutional question if the Alaska Legislature was  

                                                                                                                                                          



attempting to require the court to terminate a final order and judgment rather than merely  

                                                                                                                                                     

terminate the relief available under the consent decree."16                                                   She therefore avoided "the  

                                                                                                                                                         



more difficult question of constitutionality . . . by construing the APLRA narrowly to  

                                                                                                                                                             



terminate only prospective relief due parties under the consent decree but not the consent  

                                                                                                                                                   

decree itself."17  No party appealed Judge Andrews's decision, and that decision became  

                                                                                                                                                   



law of the case.  

                     



             C.          Current Challenges  

                                           



                         1.          James Barber  

                                                   



                         In October 2013 James Barber and four other inmates housed at Spring  

                                                                                                                                                    



Creek Correctional Center in Seward each filed 30 identical motions under the Cleary  

                                                                                                                                                    



             12          Id.  at  6.  



             13          220  F.3d  987  (9th  Cir.  2000).   



             14          Decision   and   Order,   Cleary   v.   Smith,   No.   3AN-81-05274   CI,   at   6-8  



(Alaska  Super.,  July  3,  2001).    



             15          Id.  at  7  (quoting  Gilmore,  220  F.3d  at   1000).  



             16          Id.  at  8.  



             17          Id.  



                                                                              -6-                                                                      7159
  


----------------------- Page 7-----------------------

heading alleging violations of the Final Settlement Agreement.                                                                                                                                                                                                                                            In February 2014 the                                                                     



Goose Creek Correctional Center in Wasilla began restricting prisoners from sending                                                                                                                                                                                                                                                                                          



mail to one another "except as allowed by the superintendent."                                                                                                                                                                                                                                                    In April 2014 after                                                      



Barber had been transferred to Goose Creek, he and nine other inmates filed motions                                                                                                                                                                                                                                                                                         



under the                                   Cleary  heading regarding the Department of Corrections' decision to prohibit                                                                                                                                                                                                                                                     



prisoner-to-prisoner mail communication. The                                                                                                                                                                            inmates contended that theDepartment's   



policy violated the Final Settlement Agreement.                                                                                                                         



                                                              2.                             Billy Jack Wiglesworth                              



                                                              Billy   Jack   Wiglesworth  was  already   a   prisoner   at   the   Goose   Creek  



Correctional Center when it began prohibiting prisoner-to-prisoner mail. In March 2014                                                                                                                                                                                                                                                                                                     



after   exhausting   his  administrative   remedies   through   the   prison   grievance   system  



Wiglesworth, along with three other inmates,                                                                                                                                                                                  filed a motion in the superior court.                                                                                                                   



Wiglesworth's motion alleged violations of the Final Settlement Agreement, the Alaska                                                                                                                                                                                                                                                                                             



Administrative   Code,   the   Alaska   Constitution,   and   the   Department's   procedures.   



AlthoughWiglesworthcontendedthattheDepartment'saction violated                                                                                                                                                                                                                                                                     his constitutional  



right to free speech, he requested that the court in its discretion order prospective relief                                                                                                                                                                                                                                                                                              



 for 18 months to give the parties an opportunity to separately litigate the free speech                                                                                                                                                                                                                                                                                          

issue.18  



                                                              The  Department  opposed  Wiglesworth's  motion  and  argued  that  the  

                                                                                                                                                                                                                                                                                                                                                                                                 



prisoners had failed to show that the restriction was a violation of his state or federal  

                                                                                                                                                                                                                                                                                                                                                                                 



                                18                            See  AS 09.19.200(e) ("[A] court may order prospective relief as provided                                                                                                                                                                                                                                  



in a consent decree without [finding a violation of a state or federal right] provided the                                                                                                                                                                                                                                                                                                          

prospective relief does not continue for a period of more than two years . . . .");                                                                                                                                                                                                                                                                                         Hertz v.   

State, Dep't of Corr.                                                                              (Hertz II                                   ), 230 P.3d 663, 670-71 (Alaska 2010) (noting that the                                                                                                                                   

 superior court may require the Department to abide by the Final Settlement Agreement                                                                                                                                                                                                                                                                         

 for up to two years without finding violation of a state or federal right but finding that   

Hertz sought an injunction lasting longer than two years).                                                                                                                                                                                                                     



                                                                                                                                                                                                   -7-                                                                                                                                                                                      7159
  


----------------------- Page 8-----------------------

rights.   The Department asserted that 22 AAC 05.520(a) provided it with the authority                                                                                                                                                                                                                                   



to restrict prisoner mail where "the security of the facility requires limitation"; it claimed                                                                                                                                                                                                                           



that the restriction was required to combat an increase in gang activity in Alaska prisons.                                                                                                                                                                                                                                   



                                                      In his reply Wiglesworth again suggested that the court could provide relief                                                                                                                                                                                                       



for   up   to   two   years   while   the   parties   litigated   the   issue   of   prisoner   free   speech.   



Wiglesworth noted the Department did not support its claim that gang activity had                                                                                                                                                                                                                                                            



increased or suggest that its previous practice of restricting mail on a case by case basis                                                                                                                                                                                                                                              



was no longer sufficient.                                                                            He argued that if the Department was correct in asserting that                                                                                                                                                                           



new   concerns   about  increasing   gang   violence   prompted   the   change   in   policy,   the  



Departmentshould                                                             havesought modificationoftheFinalSettlementAgreementpursuant                                                                                                                                                                                  



to Alaska Civil Rule 60(b).                                                          



                                                      In April 2014 Goose Creek instituted a new rule that inmates would be able                                                                                                                                                                                                             



to receive black and white photocopies of all incoming letters and would not receive the                                                                                                                                                                                                                                                         

                                      19   Wiglesworth moved for a preliminary injunction and temporary restraining  

originals.                                                                                                                                                                                                                                                                                                        



order pending the outcome of the administrative process.  The Department opposed the  

                                                                                                                                                                                                                                                                                                                                                 



motion and argued that Wiglesworth failed to show that its practice violated state or  

                                                                                                                                                                                                                                                                                                                                                    



federal  law,  that  security  concerns  justified  the  new  procedure,  and  that  the  new  

                                                                                                                                                                                                                                                                                                                                          



procedure did not violate the Final Settlement Agreement.  

                                                                                                                                                                                            



                                                      3.                         2014 Superior Court Order  

                                                                                                                                                                             



                                                      In July 2014 Judge Suddock concluded that the superior court was no  

                                                                                                                                                                                                                                                                                                                                                  



longer authorized to enforce the Final Settlement Agreement. Judge Suddock explained  

                                                                                                                                                                                                                                                                                                                       



                           19                         The originals of greeting cards would be stored in the inmate's property                                                                                                                                                                                            



box,   and   photographs  that   did   not   test   positive   for   drugs   would   still   be   delivered.  

Wiglesworth claims that neither the copying nor storage of mail was always done in                                                                                                                                                                                                                                                                   

practice.  



                                                                                                                                                                          -8-                                                                                                                                                             7159
  


----------------------- Page 9-----------------------

                                                                                                                                                                                                                                                                                                                                                                                    20  

that   Judge   Andrews's   2001   Order   misinterpreted   Gilmore   v.   California.      Judge  



 Suddock noted that under                                                                                                               the APLRA the State as a moving party was entitled to                                                                                                                                                                                                                          



termination   of   remedies   as   to   the   Final   Settlement   Agreement's   provisions   absent  



allegations of current and ongoing violations of state or federal rights.  Because Judge  



Andrews did not find any constitutional rights when she issued her order in 2001, Judge                                                                                                                                                                                                                                                                                                                



 Suddock concluded the Department had met the APLRA's requirements for termination                                                                                                                                                                                                                                                                                          



of the Final Settlement Agreement.                                                                                                                                           



                                                                 Based on the fact that the Department had satisfied the requirements for                                                                                                                                                                                                                                                                           



termination of the Final Settlement Agreement in 2001, Judge Suddock determined that                                                                                                                                                                                                                                                                                                                             



the Agreement was in fact terminated by Judge Andrews's 2001 Order, although the                                                                                                                                                                                                                                                                                                                                   



 superior court failed to recognize that at the time.                                                                                                                                                                 



                                                                 Judge Suddock then turned to the prisoners' argument that the court is                                                                                                                                                                                                                                                                                   



authorized to enforce the Agreement's provisions under a lesser standard for a period of                                                                                                                                                                                                                                                                                                                                 



two years.                                           He declined to invoke the court's authority, saying that "the court would                                                                                                                                                                                                                                                                     



invoke its special two-year injunctive power only under the clearest of circumstances,                                                                                                                                                                                                                                                        



which it [found] [were] not present" and that "changed conditions readily support[ed]                                                                                                                                                                                                                                                                                     



 [the Department's] safety-based policy decision to abandon inmates'                                                                                                                                                                                                                                                                                 Cleary  rights to   



receive any publications from personal sources."                                                                                                                                               



                                                                 Finally, JudgeSuddock describedthestatus                                                                                                                                                                       ofprisoners'rightstochallenge                                                                         



prison conditions after termination:                                                                            



                                                                 If any inmate desires to file a future claim alleging a state or                                                                                                                                                                                                                       

                                                                 federal   rights   violation   not   grounded   in   the   terms   of   the  

                                                                 consent decree, which extends to the entire class and seeking                                                                                                                                                                                                

                                                                 a   narrowly-tailored,   least-intrusive   remedy   that   does   not  

                                                                 unduly  interfere   with   the   appropriate   operation   of   the  

                                                                 criminal justice system, that course of action remains open,                                                                                                                                                                                                          



                                 20  

                                                                                                                                                                                                                  

                                                                 220 F.3d 987 (9th Cir. 2000).  



                                                                                                                                                                                                            -9-                                                                                                                                                                                             7159  


----------------------- Page 10-----------------------

                                                                 following exhaustion of administrative remedies.                                                                                                                                            



The court then dismissed the inmates' claims.                                                                                                                                            



                                                                Barber and Wiglesworth appeal.                                                                                           



                                                                4.                              Matthew Moore   



                                                                Matthew Moore is a pre-trial detainee being held by the Department at the                                                                                                                                                                                                                                                                       



Mat-Su   Pretrial   Facility   in   Palmer   who   was   previously   held   at   the   Goose   Creek  



Correctional Center.                                                                                While at Goose Creek, Moore was housed in the segregation unit.                                                                                                                                                                                                                                      



Goose Creek enacted a rule that denied prisoners access to showers, recreation, phone                                                                                                                                                                                                        



calls, and the law library if they failed to comply with Goose Creek's cell inspection                                                                                                                                                                                                                                                                                       



policies.  In September 2014 Moore was denied access to showers, recreation, and the                                                                                                                                                                                                                                                                                                                            



law library                                             for   non-compliance with                                                                                                        the inspection                                                            policy.     Moore asserts that the                                                                                                         



Department imposed that discipline without providing a hearing or any other procedure                                                                                                                                                                                                                                                                                          



 for contesting the determination.                                                                                                                             



                                                                Moore complained to prison staff about the policy, but the staff did not                                                                                                                                                                                                                                                                       



address his complaints.                                                                                              Moore then filed a formal grievance saying that the policy                                                                                                                                                                                                                



violated   the   Department's   Policies   and   Procedures   and   sections   of   the   Alaska  



Administrative Code, but Goose Creek denied his grievance.                                                                                                                                                                                                                                                 On December 9, 2014,                                                                    



Moore   filed   a   level 3                                                                                    grievance   appeal   with   the   Office   of the                                                                                                                                                           Commissioner.     On  



January 26, 2015, the Office of the Commissioner sent Moore a letter acknowledging the                                                                                                                                                                                                                                                                                                                           



Department'sPolicies                                                                                      and saying the Goose Creek handbook would beupdatedto                                                                                                                                                                                                                                 reflect  



that prisoners would lose only their personal phone time for failing to pass the daily                                                                                                                                                                                                                                                                                                                



inspection and would not lose their rights to showers, daily recreation, or legal phone                                                                                                                                                                                                                                                                                                          



calls.  Moore claims that this response was untimely under the applicable Department                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                       -10-                                                                                                                                                                                             7159
  


----------------------- Page 11-----------------------

policy.21  



                                                                         On January 9, 2015, before the Office                                                                                                                                                                  of the Commissioner had responded,                                                                                                     



 Moore   filed   a   motion  under   the   Cleary   heading   to   enforce   the   Final   Settlement  



 Agreement.   Moore's Motion to Enforce and for Declaratory Relief alleged violations                                                                                                                                                                                                                                                                                                                                      



 affecting prisoners housed at Goose Creek.  Specifically, Moore alleged that prisoners                                                                                                                                                                                                                                                                                                                                        



were being punished in violation of the Agreement, the Alaska Administrative Code, the                                                                                                                                                                                                                                                                                                                                                                           



 Department's Policies and Procedures, and state and federal due process. Moore argued                                                                                                                                                                                                                                                                                                                                                      



 that "if a prisoner is citing the [Final Settlement Agreement] or                                                                                                                                                                                                                                                                                  Cleary  litigation and is                                                                                           



 claiming violations of constitutional rights, [which] are still [enforceable] under the                                                                                                                                                                                                                                                                                                                                                                       



 APLRA, then the grievance is part of the open and active                                                                                                                                                                                                                                                                    Cleary  litigation."   He also   



 contended that he exhausted his administrative remedies "[b]ecause the grievance is the                                                                                                                                                                                                                                                                                                                                                                        



 administrative remedy."                                                                                                             Finally, he contended that "this declaratory judgment can be                                                                                                                                                                                                                                                                  



 narrowly   fashioned so                                                                                                       as to not improperly                                                                                                    thrust the Judiciary                                                                                             into   the Executive   



 Branch's day to day operations of the prisons."                                                                                                                                                             



                                                                         5.                                 2015 Superior Court Order                                                                                                



                                                                         On January 16, 2015, Superior Court Judge Suddock rejected Moore's                                                                                                                                                                                                                                                                                      



 motion. Judge Suddock concluded that Moore was bringing a disciplinary appeal, noted                                                                                                                                                                                                                                                                                                                                                              



 that Moore failed to indicate that he sought to represent the                                                                                                                                                                                                                                                          Cleary  class, and cited                                                                                                  Hertz  



II  to say this court had on "parallel facts" re-captioned a case filed under the                                                                                                                                                                                                                                                                                                                                                          Cleary  



 heading in the prisoner's own name.                                                                                                                                                                     Judge Suddock suggested that Moore re-file his                                                                                                                                                                                                         



 case as a stand-alone administrative appeal captioned under his own name and said that                                                                                                                                                                                                                                                                                                                                                                      



                                    21                                  See                            State                                 of                    Alaska,                                             Dep't                                     of                    Corr.,                                     Policies                                              and                            Procedures  



 808.03(VII)(A)(2)(j) (2006) ("The Standards Administrator shall respond in writing                                                                                                                                                                                                                                                                                                                                                     

 directly to the prisoner within 20 working days. This decision is the final administrative                                                                                                                                                                                                                                                                                                         

 action by the Department on the grievance.").                                                                                                                                  



                                                                                                                                                                                                                               -11-                                                                                                                                                                                                                     7159
  


----------------------- Page 12-----------------------

"[t]he court will take no further action regarding his filing within the                                                                          Cleary   case."  



                           Moore moved for reconsideration.  He argued that he was not bringing a   



prisoner disciplinary appeal, that he had asked to represent the                                                             Cleary  class by implicit        



statement, that he had the right to bring the enforcement action pro se, and that his                                                                                  

                                                                                                                              22    Additionally, Moore  

motion did not present the court with parallel facts to                                                     Hertz II .                                          



contended that the superior court lacked statutory jurisdiction to review Department  

                                                                                                                                                      



grievances through the administrative appeal process, meaning that he would be left  

                                                                                                                                                                       



without any remedy.  

                          



                           JudgeSuddockdeniedMoore'smotion for reconsideration. JudgeSuddock  

                                                                                                                                                             



conceded that he had mistakenly ordered Moore to file a free-standing administrative  

                                                                                                                                                 



appeal, and he instead directed Moore to file an action for declaratory and injunctive  

                                                                                                                                                         



relief under his own name. Judge Suddock asserted that Moore would not be prejudiced  

                                                                                                                                                         



by proceeding consistently with Hertz II.  

                                                                              



                           Moore appeals.  For purposes of this decision, we consolidate the three  

                                                                                                                                                                   

appeals.23  



III.          STANDARD OF REVIEW  

                                                   



                           Principles   of   contract   interpretation   govern   the   construction   and  

                                                                                                                                                                    

enforcement of the Cleary Final Settlement Agreement.24                                                             "The settlement agreement's  

                                                                                                                                                     

scope and effect raise questions of contract law that we review de novo."25                                                                                    "In the  

                                                                                                                                                                       



             22            In  Hertz II          a pro se prisoner moved the court to require the Department of                                                           



Corrections to pay prisoners money upon being released from prison as provided for in                                                                                     

the  Cleary  settlement.   Hertz II                           , 230 P.3d at 664.                     



             23            See Alaska R. App. P. 204(i).  

                                                                                        



             24            See Hertz II, 230 P.3d at 669.  

                                                                              



             25            Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).  

                                                                                                                                     



                                                                                   -12-                                                                            7159
  


----------------------- Page 13-----------------------

absence of factual disputes, we review questions of contract formation and interpretation                                                                            



de novo. . . .  If we agree, on de novo review, that a valid settlement agreement exists,                                                                                            

the superior court has no discretion to decline to enforce that agreement."                                                                                           26  



          

IV.            DISCUSSION  



                                                                                                                                                                            

                              The Final Settlement Agreement "ordinarily allows compliance challenges  



                                                                                                                                                                             

to   be  prosecuted   individually   by   prisoners   who   have   exhausted   all   available  



                                                          27  

                                                                                                                                                                                         

administrative remedies."                                        Those prisoners' motions, although filed under one case  



                                                                                                                                                                              

heading, are similar to separate actions becauseeach motion involves different prisoners,  



                                                                                                                                                                                             

correctional facilities, and facts. The superior court orders adjudicating those claims are  



                                                                                                                                                                                    

final judgments subject to appeal. But those motions are not new actions and are instead  



                                                                                                                                                                                            

motions within an existing case, meaning that rulings on Cleary motions fall within the  



                                                                                                                                                                             

law of the case doctrine.  We conclude that Judge Andrews's 2001 Order is the law of  



                                                                                                                                       

the case, and that overruling Judge Andrews's 2001 Order required Judge Suddock to  



                                                                                                                                                                           

make findings in 2014 that he did not make.  We therefore reverse Judge Suddock's  



             

2014 Order.  



                                                                                                                                                                                         

                              "The law of the case doctrine, which is 'grounded in the principle of stare  



                                                                                                                                                                 

decisis' and 'akin to the doctrine of res judicata,' generally 'prohibits the reconsideration  



                                                                                                                                                                                               28  

                                                                                                                                                                                                     

of  issues  which  have  been  adjudicated  in  a  previous  appeal  in  the  same  case.'  " 



Although it is true that "[a] trial judge who succeeds a prior trial judge in a case while  

                                                     



               26             Chilkoot Lumber Co. v. Rainbow Glacier Seafoods, Inc.                                                                          , 252 P.3d 1011,         



 1014-15 (Alaska 2011) (footnotes omitted) (citations omitted).                                                           



               27             Smith, 24 P.3d at 1251.  

                                                                                    



               28             Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009) (first quoting Alaska R.R.  

                                                                                                                                                                                          

Corp. v. Native Vill. of Eklutna, 142 P.3d 1192, 1201 (Alaska 2006); then quoting State,  

                                                                                                                                                                                       

Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 n.52 (Alaska 2003);  

                                                                                                                                                                                     

and then quoting Carlson, 65 P.3d at 859 n.52).  

                                                                                               



                                                                                             -13-                                                                                       7159
  


----------------------- Page 14-----------------------

the case is still in the trial court may generally reconsider a decision made by the prior                                                             



judge without violating the law of the case doctrine[,] . . . that freedom is not available                                                                                

where . . . the prior judge's decision has been affirmed on appeal."                                                                              29  



                                                                                                                                                                                         

                              But the law of the case doctrine is broader than just those issues decided on  



                                                                                                                                                                                     

 appeal:  in the context of the Cleary Final Settlement Agreement, the law of the case  



                                                                                           

 doctrine is applicable to issues that were fully litigated resulting in a final order which  



                                                                                                                                                                             

was not timely appealed. In Dunlap v. Dunlap, James Dunlap did not appeal the superior  



                                                                                                                                                                             

 court's 1995 ruling that a certain retirement buyout was considered income under a  

                                                                 30   In 2004 Ann Dunlap, James's former wife, alleged that  

                                                                                                                                                                                      

marital separation agreement. 

 James failed to satisfy one of the conditions of the separation agreement.31  James argued  

                                                                                                                                                                                



that the superior court incorrectly classified his retirement buyout as income, and he  

                                                                                                                                                                                         

                                                                                                                   32  We rejected James's argument:  

therefore did not violate the terms of the agreement.                                                                                                                                           



 although we acknowledged that "James may have had a claim that the superior court  

                                                                                                                                                                                   

                                                                                                                                  33   We held that "[t]he relief  

 erred," we concluded that "the time to appeal was in 1995."                                                                                                                       

                                                                                                                    

                                                                                                                34 and we observed that "[a]lthough  

 James seeks now is barred by the law of the case,"                                                                                                        

                                                                                                   



 our doctrine of law of the case generally refers to issues that have previously been  

                                                                                                                                                                                   



reviewed at the appellate level, the doctrine is equally applicable to issues that have been  

                                                                                                                                                                                    



               29            Id . at 1017 (citations omitted).                                    



               30             131 P.3d 471, 474-75 (Alaska 2006).                                                



               31            Id . at 474.  

                                           



               32            Id . at 475.  

                                           



               33            Id .  



               34            Id .  

                                      



                                                                                           -14-                                                                                    7159
  


----------------------- Page 15-----------------------

                                                                                                                                                                     35   

fully litigated in the superior court and as to which no timely appeal has been made."                                                                                    



                                                                                                                                                                    

Thus a final judgment that could have been appealed - but was not - becomes law of  



the case.   And as we stated in Dunlap, "issues previously adjudicated can only be  

                                                                                                                                                                   



                                                                                                                                                              

reconsidered where there exist 'exceptional circumstances' presenting 'a clear error  

constituting a manifest injustice.' "36  In Smith v. Cleary we applied a law of the case  

                                                                                                                                                               

analysis to a superior court order in Cleary litigation.37  

                                                                                     



                          In2000theDepartment moved to terminatetheFinal SettlementAgreement  

                                                                                                                                                   

pursuant to the APLRA.38  The Cleary class opposed the motion arguing that the APLRA  

                                                                                                                                                        

was  unconstitutional.39                          Judge  Andrews  issued  a  decision  declaring  the  APLRA  

                                                                                                                                                       



constitutional,  but  she  determined  that  the  APLRA  only  "withstands  constitutional  

                                                                                                                                             



scrutiny provided that the APLRA only terminates the prospective effect of the [Cleary  

                                                                                                                                                         

                                                                                                      40   After another hearing in 2001,  

settlement] and not the [Cleary settlement] [itself]."                                                                                                       

                                                                                      



             35           Id . at     475-76 (emphasis in original) (citing                                  Hermosillo v. Hermosillo                         , 797   



P.2d 1206, 1208 (Alaska 1990) (presentation, in 1989, of motion nearly identical to                                                                                 

motion denied in 1988 constituted untimely appeal)).                                                     



             36           Id . at 475 (quoting State, Commercial Fisheries Entry Comm'n v. Carlson,  

                                                                                                                                                       

65 P.3d 851, 859 (Alaska 2003)).  

                                                                   



             37           24 P.3d 1245, 1248-49 (Alaska 2001) (ruling that a 1986 superior court  

                                                                                                                                                              

order only applied to Subclass C and therefore was not the law of the case with respect  

                                                                                                                                                          

to Subclasses A and B).  

                                         



             38           Decision  and  Order,  Cleary  v.  Smith,  No.  3AN-81-05274  CI,  at  2  

                                                                                                                                                                    

(Alaska Super., July 3, 2001).  The APLRA terminated the prospective relief that the  

                                                                                                                                                                  

superior court could award to prisoners who brought claims under the Final Settlement  

                                                                                                                                                   

Agreement, and it set out the requirements the Department must satisfy before it may  

                                                                                                                                                               

move to terminate the Final Settlement Agreement.  AS 09.19.200(c)-(d).  

                                                                                                                                                



             39           Decision and Order, at 2-3.  

                                                                        



             40           Id. at 3.  

                                      



                                                                                -15-                                                                          7159
  


----------------------- Page 16-----------------------

Judge Andrews issued a decision reaffirming her prior determination that "it would pose                                                                                   



a grave constitutional question if the Alaska Legislature was attempting to require the                                                                                      



court to terminate a final order and judgment rather than merely terminate the relief                                                                                   

                                                                                41     Based  on  those  concerns,  Judge  Andrews  

available   under   the   consent   decree."                                                                                                                    



concluded  that  the  APLRA  was  constitutional  only  if  it  left  the  Final  Settlement  

                                                                                                                                                            



Agreement intact while restricting the court's authority to order continuing prospective  

                                                                                                                                                            



relief  under  the  Agreement;  she  thus  avoided  "the  more  difficult  question  of  

                                                                                                                                                        



constitutionality . . . by construing the APLRA narrowly to terminate only prospective  

                                                                                                                                                           

relief due parties under the consent decree but not the consent decree itself."42  

                                                                                                                                                 



              Judge  Andrews's  2001  Order  was  a  final  judgment.                                                                     "A  final  judgment  

                                                                                                                                                              



extinguishes all claims 'with respect to all or any part of the transaction, or series of  

                                                                                                                                                                               

                                                                                                                                    43   We have "identified  

connected transactions' out of which the previous action arose."                                                                                             

                                                                                                                      



several indicia that a prior judgment was final: 'that the parties were fully heard, that the  

                                                                                                                                                                             



court supported its decision with a reasoned opinion, [and] that the decision was subject  

                                                                                                                                                                     

                                                                                                 44   In the context of the constitutionality  

to appeal or was in fact reviewed on appeal.' "                                                                                                   

                                                                                               



of the APLRA and the legal status of the Final Settlement Agreement following the  

                                                                                                                                                                             



enactment of the APLRA, the parties were fully heard:  the Department filed a motion  

                                                                                                     



requesting that the superior court terminate the 1990 Final Settlement Agreement and  

                                                                                                                                                   



one of the 1983 consent decrees, the plaintiffs opposed that motion, and the superior  

                                                                                                                                                                  



              41           Id .  at  8.  



              42           Id .  



              43           Jackinsky  v.  Jackinsky,  894  P.2d  650,  654  (Alaska  1995)  (quoting  Tolstrup  



v.  Miller,  726  P.2d   1304,   1306  (Alaska   1986)).  



              44           Alaska Wildlife Alliance v. State, 74  P.3d 201, 206 (Alaska 2003)  (alteration  



in  original)  (quoting  Usibelli  Coal  Mine,  Inc.  v.  State,  Dep't  of  Nat.  Res.,  921  P.2d  1134,  

 1142  (Alaska   1996)).  



                                                                                     -16-                                                                                7159
  


----------------------- Page 17-----------------------

                                                                                                45  

court held two separate hearings on the issue.                                                       The court also supported its decision                         



with a reasoned opinion:                             Judge Andrews issued a 31-page Decision and Order in 2001                                                            



that carefully considered the APLRA's constitutionality and prisoners' continuing rights                                                                                 

under the Final Settlement Agreement in light of the APLRA.                                                                      46  



                            Both the Department and the  Cleary class could have appealed  Judge  

                                                                                                                                                   

Andrews's order, but they did not.47  Following the Order, the Department and Cleary  

                                                                                                                                                                      



class counsel proceeded as though Judge Andrews's order must be given effect; so did  

                                                                                                                                                                              

this court.48  Because Judge Andrews's 2001 Order was a final judgment that could have  

                                                                                                                                                                           



been  but  was  not  appealed,  it  became  the  law  of  the  case  and  was  not  subject  to  

                                                                                                                                                                                



reconsideration absent a determination that " 'exceptional circumstances' present[ed] 'a  

                                                                                                                                                                                 

clear error constituting a manifest injustice.' "49  

                                                                                              



                            In July 2014 Judge Suddock dismissed the prisoners' motions based on his  

                                                                                                                                                                               



conclusion  that  Judge  Andrews's  2001  Order  had  actually  terminated  the  Final  

                                                                                                                                                                        



Settlement Agreement. JudgeSuddock concluded, "Theprovisions oftheconsentdecree  

                                                                                                                                                                        



              45            Decision  and  Order,  at  2-3.   



              46            Id .  at   1-31.  



              47            See  Dunlap  v.  Dunlap,   131  P.3d  471,  475  (Alaska  2006)  (quoting  State,  



Commercial  Fisheries  Comm'n  v.  Carlson,  65  P.3d  851,  859  (Alaska  2003)).  



              48            In  Hertz  II  Hertz  challenged  the  denial  of  "gate  money"  upon  his  release,  



for  which  the  Final   Settlement  Agreement  provided.   Hertz  II ,  230 P.3d 663,   665-66  

(Alaska 2010).   We explained, "The [2001] superior court order specifically required that  

all  future claims  for  prospective relief under  the [Final Settlement Agreement] must show  

a  current  violation  of  a  state  or federal  right,  as  required  by  the  APLRA.   The   Cleary  

class, of  which  Hertz  was  a  member,  did  not  appeal t  hat  order."   Id.  at 6                                                                  68.   Our past  

reliance  on  the  2001  Order  provides  additional  support  for  our  holding  today.  



              49            Dunlap  v.  Dunlap,  131 P.3d  471,  475  (Alaska  2006)  (quoting  State,  

                                                                                                                                                                        

Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003)).  

                                                                                                                                                               



                                                                                      -17-                                                                                7159
  


----------------------- Page 18-----------------------

that the inmates now seek to enforce are in fact unenforceable by the court, because they                                                                                                                                                                                                



were terminated by Judge Andrews in her 2001 order."                                                                                                                                        But Judge Suddock overlooked                                         



the constitutional concerns Judge Andrews had noted in her order:                                                                                                                                                                   the Agreement was                                     



not terminated by Judge Andrews's 2001 Order because Judge Andrews determined that                                                                                                                                                                                                          



terminating the Agreement itself would present grave constitutional concerns.                                                                                                                                                                                                    Judge  



 Suddock also failed to address the preclusive effect of Judge Andrews's Order, and he                                                                                                                                                                                                          

                                                                                                                                                                                                                        50       Because the superior  

failed to make sufficient findings to reverse the law of the case.                                                                                                                                                                                                          



court did not make sufficient findings to reverse the law of the case, we reverse Judge  

                                                                                                                                                                                                                         



 Suddock's 2014 Order and reinstate the rights of prisoners as they have existed since  

                                                                                                                                                                                                                                                                                      



Judge  Andrews's  2001  Order:                                                                                       prisoners  may  bring  motions  to  enforce  the  Final  

                                                                                                                                                                                                                                                                                    



 Settlement Agreement provided that they exhaust their administrative remedies, they  

                                                                                                                                                                                                                                                                                        



allege violations of the Agreement and of a state or federal right, the violations affect the  

                                                                                                                                                                                                                                                                                              



entire class, the relief requested utilizes the least intrusive means, and the court considers  

                                                                                                                                                                                                                                                                        

the adverse effects on public safety and the criminal justice system.51  

                                                                                                                                                                                                             



                       50                     Moreover, it does not appear that the Department argued before Judge                                                                                                                                                                 



 Suddock that Judge Andrews's 2001 Order terminated the Final Settlement Agreement                                                                                                                                                                                

or that exceptional circumstances required revisiting Judge Andrews's Order.                                                                                                                                                                                               And the   

Department appeared to treat the                                                                               Cleary  settlement as good authority in its briefs before                                                                                                          

the superior court.                                                  In its Opposition to Wiglesworth's Motion for Enforcement of                                                                                                               

Consent Decree, the Department argued that "Wiglesworth's motion must be denied                                                                                                                                                                                                 

because he has failed to prove that this restriction . . . constitutes the violation of a state                                                                                                                                                                                      

or federal right as required by AS 09.10.200(a)."                                                                    



                       51                     See   AS   09.19.200(a);   Decision   and   Order,   Cleary   v.   Smith,   No.  

                                                                                                                                                                                                                                                                                       

3AN-81-05274 CI, at 1-8 (Alaska Super., July 3, 2001).  We note that the Department  

                                                                                                                                                                                                   

may seek to revisit Judge Andrews's Order by filing a motion in the superior court to do  

                                                                                                                                                                                                                                                                                                

so.  We do not decide what standard the superior court must apply in that situation,  

                                                                                                                                                                                                                                                                       

should it arise, but we suggest two possibilities.  First, the Department could move for  

                                                                                                                                                                                                                                                                                             

modification of or relief from the Final Settlement Agreement and Order under Section  

                                                                                                                                                                                                                                                                              

IX(B) of the agreement. This section provides that "an application to the court to modify  

                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                          (continued...)  



                                                                                                                                             -18-                                                                                                                                      7159
  


----------------------- Page 19-----------------------

                            Our conclusion today is supported by the policies underlying the                                                              law of the     



case doctrine.               As we noted in                 Beal v. Beal             , "[t]he law of the case doctrine is 'a doctrine                        



of economy and of obedience to the judicial hierarchy.'                                                                The strong policy reasons              



behind it include '(1) avoidance of indefinite litigations; (2) consistency of results in                                                                                



 [the]   same   litigation;   (3)   essential   fairness   between   the   parties;   and   (4)   judicial  

                          52    These principles are served in this case by requiring the parties to abide  

efficiency.' "                                                                                                                                                     



by Judge Andrews's 2001 Order.  Without applying the law of the case here, there is  

                                                                                                                                                                          



nothing to stop subsequent superior courts from reinterpreting the APLRA and creating  

                                                                                                                                                              



further uncertainty surrounding the Cleary litigation.  And although we are aware that  

                                                                                                            



this litigation has continued for many years and that ending the Cleary litigation may be  

                                                                                                                                                                         



a worthwhile goal, consistency and fairness require that the Department allege and prove  

                                                                                                                                                                   



sufficient facts and the superior court make sufficient findings before reversing Judge  

                                                                                                                                                                  



Andrews's 2001 Order and terminating the Final Settlement Agreement.  

                                                                                                                           



                           Because we reinstate prisoners' rights to bring motions under the Cleary  

                                                                                                                                                                



heading, the superior court on remand must determine whether Barber's,Wiglesworth's,  

                                                                                                                                               



and Moore's motions satisfy the requirements of the APLRA.  We note that, although  

                                                                                                    



              51(...continued)  



                                                                                                                                                            

or vacate shall be governed by the principles of Civil Rule 60(b)(5) and (6)."  Second,  

                                                                                                                                                                               

the  Department  could  move  for  reconsideration  of  Judge  Andrews's  2001  order.  

                                                                                                                                                                      

Because this order is the law of the case, the Department would have to show that  

                                                                                                                                                           

"  'exceptional  circumstances'  present[ed]  'a  clear  error  constituting  a  manifest  

                                                                                                                                       

injustice.' "  Dunlap, 131 P.3d at 475 (quoting Carlson, 65 P.3d at 859).  



              52           209 P.3d 1012, 1017 (Alaska 2009) (second alteration in original) (first  

                                                                                                                                                                    

quoting  Dieringer  v.  Martin,  187  P.3d  468,  473-74  (Alaska  2008);  then  quoting  

                                                                                                                                                             

Petrolane Inc. v. Robles, 154 P.3d 1014, 1026 (Alaska 2007)).  

                                                                                                                               



                                                                                   -19-                                                                            7159
  


----------------------- Page 20-----------------------

                                                                                                                                                                                                                                                                                                                                                               53  

the superior court found that Moore was not entitled to represent the entire class,                                                                                                                                                                                                                                                                                   there  



is no evidence that he sought to represent the entire class.                                                                                                                                                                                                   Moore filed a motion on his                                                                                     



own behalf, and he only indicated that he sought to represent the                                                                                                                                                                                                                                       Cleary   class in his                                                  



motion for reconsideration after Judge Suddock denied his initial motion for failing to                                 



indicate that he sought to represent the                                                                                                                                    Cleary  class.  



V.                            CONCLUSION  



                                                           WeREVERSEthesuperiorcourt's order dismissing theprisoners' motions                                                                                                                                                                                                                             



and REMAND for further proceedings.                                                                                  



                              53                           See Hertz v. Cleary, 835 P.2d 438, 442 n.3 (Alaska 1992) ("[A]s a pro se  

                                                                                                                                                                                                                                                                                                                                                                                   

plaintiff, Hertz may not properly represent a class.").  

                                                                                                                                                                                                 



                                                                                                                                                                                      -20-                                                                                                                                                                                                  7159  

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