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J. Hays v. State (5/1/92), 830 P 2d 783
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JACK HAYS, )
) Supreme Court No. S-4036
v. ) Superior Court No.
) 3KN-90-63 CIVIL
STATE OF ALASKA, )
) O P I N I O N
______________________________) [No. 3835 - May 1, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston, Judge.
Appearances: Jack D. Hays, Appellant,
pro se. John K. Bodick, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
RABINOWITZ, Chief Justice.
Jack Hays, an inmate in the Alaska prison system, filed
an appeal in the superior court after administratively
challenging his dismissal from his prison librarian job and his
removal from honor-wing of the facility in which he is
incarcerated. The superior court dismissed Hays' appeal for lack
of subject matter jurisdiction and this appeal followed. We
FACT AND PROCEEDINGS
Jack Hays, an inmate in the Wildwood Correctional
Center, was dismissed from his prison librarian job. His
dismissal was based on his failure to perform his job, as well as
his abusive attitudes toward other inmates. In accordance with
prison guidelines Hays was removed from the honor-wing at the
Wildwood facility that same day as a result of his job
termination. The following day, Hays filed a "request for
interview" with Superintendent Moody, requesting that the
superintendent review and reverse his job termination and removal
from the honor-wing. The superintendent denied Hays' informal
request for relief, stating that the removal from honor-wing is
within the superintendent's discretion and is based on
recommendations from prison staff. Hays then filed a formal
"prisoner grievance" alleging that the termination of his
librarian job and removal from honor-wing were violative of sub
stantive and procedural due process. An investigator responded
to Hays' grievance, concluding:
[I]t has been determined that the
attitude of Mr. Hays is not in the best
interests to the security or orderly
administration of the institution. Mr. Hays
is outspoken about his contempt towards "non-
whites, Jews, homosexuals, and baby rapers."
Such attitudes are clearly not conducive to
the present inmate population at Wildwood
Correctional Center. This investigator can
find no "conspiracy"directed towards Mr.
Hays. It is also very clear that unless Mr.
Hays changes his attitudes, the only work
positions that should be available to him are
those that limit the amount of direct contact
with other inmates. The law library is a
service to all inmates in which bigotry,
racism and anti-semetism [sic] can not be
After the superintendent denied Hays' formal request
for relief, Hays filed an appeal with the Southcentral Regional
Director, Charles Moses. Subsequently, the Regional Director
denied the requested relief stating,
It is clear to me that you were
terminated from your job as a result of your
poor attitude and/or unacceptable job
performance. It is also clear to me that you
were removed from your honor status due to
job termination which is in accordance with
the guidelines established for honor status
Hays then filed an administrative appeal in the
superior court, which dismissed the case for lack of subject
matter jurisdiction. Hays now appeals.
Hays argues that his due process rights were violated
because he was punished without a disciplinary hearing. He
asserts that his reduced "gratuity,"his segregation from other
inmates in his work assignments, and his removal from honor-wing
and honor status all constitute punishments that require a
disciplinary hearing. He further asserts that it was a denial of
due process for the Department of Corrections officials to rely
on the "secret memo" which he alleges contains "bad faith
The state relies on Hertz v. Carothers, 784 P.2d 659,
660 (Alaska 1990), for the proposition that the superior court
does not ordinarily have jurisdiction over appeals from prison
grievance proceedings. However, Carothers does not preclude
superior court review in all instances. While we have held that
an "inmate has no automatic right of appeal to the courts of
Alaska," an inmate is entitled to judicial review of a major
disciplinary proceeding where "issues of constitutional magnitude
are raised." Carothers, 784 P.2d at 660 (quoting McGinnis v.
Stevens, 543 P.2d 1221, 1236 (Alaska 1975)).
Hays asserts that the Department of Corrections'
actions constitute a denial of his rights under the Alaska and
Federal constitutions. We have not previously addressed whether
denial of employment as a prison librarian raises an issue of
Article I, 12 of the Alaska Constitution provides
that "[p]enal administration should be based on the principle of
reformation and upon the need for protecting the public." In
Ferguson v. Department of Corrections, 816 P.2d 134, 139 (Alaska
1991), we held that "[u]nder Alaska law . . . prisoners have an
enforceable interest in continued participation in rehabilitation
Prior to testing positive for marijuana use, Ferguson
participated in the Alaska Correctional Industries Program (ACI)
at the Palmer Meat Packing Plant. Id. at 136. Participation in
the program requires application and approval. Id. at 140.
Participants are housed in special housing and receive up to
$1.25 per hour in pay. Id. at 136. In Ferguson, we
characterized the ACI program as a "rehabilitation program." Id.
Based on a positive EMIT test for marijuana use,
Ferguson was found guilty of a High-Moderate Infraction and was
dismissed from the ACI program. Id. at 136. As part of his
penalty, he was required to perform "forty hours of free labor in
the facility kitchen." Id. at 137. Unlike Ferguson, Hays was
not denied all rehabilitative opportunities. Rather, he was
transferred from one prison employment position to another.
Thus, we conclude that there was no violation of Hays' right to
rehabilitation and that in these circumstances he does not have
an enforceable constitutional interest in continued employment as
a prison librarian.
Alaska Statute 33.30.191 provides that prisoners "be
productively employed for as many hours each day as feasible."
The definition of "productive employment"in AS 33.30.191(d)(1)
includes "routine maintenance and support services essential to
the operation of a correctional facility." A paid employment
position shoveling snow is within the definition of productive
employment. Further, as a practical matter, the Department of
Corrections must have the discretion to assign inmates to
different prison employment positions as staffing needs require
without conducting a hearing as to each contemplated transfer.
Given the absence of an issue of constitutional
magnitude in the case at bar, we hold that the superior court did
not err in dismissing Hays' appeal for lack of subject matter
jurisdiction. Under Carothers, 784 P.2d at 660, Hays did not
have a right to appeal his prisoner grievance to the superior