Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Hertz v. State (4/6/01) ap-1732
Hertz v. State (4/6/01) ap-1732
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SIDNEY R. HERTZ, )
) Court of Appeals No. A-7585
Appellant, ) Trial Court No. 3AN-98-3277 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1732 April 6, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Brian C. Shortell, Judge.
Appearances: Sidney R. Hertz, pro se,
Florence, Arizona, for Appellant. Timothy W. Terrell, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Appellees.
Before: Coats, Chief Judge, Stewart, Judge,
and Rabinowitz, Senior Supreme Court Justice.
[Mannheimer, Judge, not participating.]
STEWART, Judge.
The Department of Corrections sent Sidney R. Hertz to a
privately operated prison facility in Arizona to serve his sentence
for second-degree murder. Hertz objected to this move and filed a
superior court action for a declaratory judgment and injunctive
relief and for monetary damages "with a writ of habeas corpus
incorporated" against the Department of Corrections and several
state officials (DOC). The superior court granted DOC's motion for
summary disposition of Hertz's claim for habeas corpus and, pursuant
to Civil Rule 54(b), entered a final judgment on that claim. Hertz
appealed to the supreme court and, on DOC's motion, the supreme
court transferred the appeal to this court. Because Hertz did not
raise a claim that entitled him to habeas corpus relief, we affirm.
Facts and proceedings
In 1984, Hertz was indicted on one count of first-degree
murder and, following a jury trial, was convicted of second-degree
murder. Superior Court Judge J. Justin Ripley sentenced Hertz to
a 40-year term and restricted Hertz's parole eligibility for 20
years. We affirmed Hertz's conviction and sentence on direct
appeal. [Fn. 1] Hertz has also filed several applications for post-
conviction relief. [Fn. 2]
In his complaint, Hertz does not attack his conviction or
his sentence nor does he challenge the superior court's personal or
subject matter jurisdiction for the underlying criminal case that
led to his second-degree murder conviction. Instead, Hertz attacks
the constitutionality of his transfer to an out-of-state private
facility, the Central Arizona Detention Center (CADC), DOC's
authority to place him at CADC, and the legality of CADC under
Arizona law. Hertz also alleges that he is entitled to relief in
habeas corpus because DOC waived jurisdiction over him by sending
him to the private prison. Hertz asserts that the transfer operates
as a commutation of his sentence or a pardon.
Assuming that Hertz could pursue his present claims by
prosecuting a writ of habeas corpus, Superior Court Judge Brian C.
Shortell concluded that Hertz had not raised a meritorious legal
issue after finding that Hertz's pleadings raised no issues of
material fact. On the legal issues Hertz did raise, Judge Shortell
concluded as follows: DOC did not waive jurisdiction over Hertz by
sending him to CADC; AS 33.30.031(a) does not violate the
prohibition against ex post facto legislation; DOC did not
unconstitutionally delegate its power to incarcerate Hertz; and CADC
was not improperly organized under Arizona law.
Did DOC waive jurisdiction over Hertz by transferring him
to
a private prison in Arizona?
Hertz claims that he is entitled to an immediate release
because the State waived jurisdiction over him when DOC "deported"
him to CADC against his will. First, Hertz asserts that DOC is
barred under the doctrines of quasi-estoppel and equitable estoppel
from asserting jurisdiction over him because it took a contrary
position in prior litigation. Second, he asserts that there is no
statutory basis for the State to retain jurisdiction over Alaska
inmates sent to private prisons out of state. Third, he argues that
the common law doctrine of waiver of jurisdiction entitles him to
immediate release. [Fn. 3]
Hertz's estoppel claims
Hertz argues that the State is estopped from claiming that
it retains jurisdiction over Alaska inmates at CADC because it took
an inconsistent position in a September 1995 hearing related to
DOC's compliance with the Cleary [Fn. 4] Final Settlement Agreement
(FSA). Under the doctrine of quasi-estoppel, a party is barred from
changing its position on an issue in later litigation "where
circumstances render assertion of a second position unconscionable."
[Fn. 5]
It is apparent from our review of the record that the
superior court could reasonably conclude that Hertz had not
demonstrated a factual basis for his estoppel argument. Hertz
relies on an argument by a state attorney at a hearing by the Cleary
court that the private prison should not be required to seek DOC's
approval before taking any disciplinary action against inmates
testifying at the Cleary hearing. Superior Court Judge Karen L.
Hunt had considered issuing an order imposing that condition on CADC
after the housing units of some of the Alaska inmates who were
scheduled to testify had been searched. Although Judge Hunt
ultimately concluded that the search was not conducted in
retaliation for the inmates' decision to testify, she expressed
concern about the inmates' perceptions that the search was
retaliatory.
The assistant attorney general at the hearing opposed an
order requiring CADC to seek approval from the Deputy Commissioner
of DOC before it took disciplinary action against these inmates:
Deputy Commissioner of [DOC] doesn't have
any involvement in any of these actions even for the Alaska
Department of Corrections. That's not his job or his
responsibilities. We have a contract with the Corrections
Corporation of America. ... I think it would it really handicaps
their ability to conduct the business that they do on a daily
basis, and I think it's totally unwarranted.
The attorney also questioned whether the court had the authority to
impose that order. Neither the assistant attorney general or the
inmates' attorney suggested that DOC had no legal jurisdiction over
CADC inmates.
After concluding that the search was not retaliatory,
Judge Hunt noted:
The Court does not rule but it is it notes
with great interest the fact that both parties are basically
presenting to the court and a suggestion that, once the ink dried
on that contract, those prisoners are under the total control of
whoever it is that's running the facility. Neither the State of
Alaska through the Department of Corrections nor this Court, through
its oversight responsibilities because of the Cleary case, can do
anything to any decision or put any conditions or requirements on
any decision that might be made. I'm sure that's an issue that will
be revisited in some detail later.
The assistant attorney general noted that "the court's
characterization of our position is not entirely accurate." He then
proposed as a compromise that he secure a commitment from CADC to
notify DOC of any adverse action against testifying inmates. That
information would then be passed on to the inmates' attorney. Judge
Hunt directed counsel to discuss that and other alternatives and
then added:
I want to note that I understand that any
institutional correctional institution must be able to respond
appropriately to inmate behavior. So, I don't want to leave us with
the in the position that we do not also have some concern about
making sure that the facility management is not hampered. What we
are talking about here is being able to reassure the inmates that
... there are things in place that will happen if there should be
any additional attempts at what they perceive to be
retaliation.
When the hearing reconvened, Judge Hunt ordered that CADC,
during the next three months, notify DOC within ten days of any
adverse action being taken against Alaska inmates at CADC who
testified at the Cleary hearing.
This dialogue, taken in context, indicates that the
parties were not disputing whether the State had jurisdiction over
Alaska inmates at CADC. The State was arguing that it was not the
Deputy Commissioner's role, contractually or otherwise, to interfere
with CADC's day-to-day disciplinary decisions. Judge Hunt did not
characterize the State as disclaiming legal jurisdiction over the
inmates.
Hertz also attempts to support his position with a March
20, 1995, letter from a DOC employee that stated that DOC asserted
that the Cleary FSA did not apply to Alaska inmates housed at CADC.
But the fact that DOC took the position before Judge Hunt's
contrary order that the Cleary FSA only applied to prisons "owned
and operated" by DOC is not an admission that the State had no
jurisdiction over Alaska inmates at CADC. Moreover, DOC's original
contract with CADC indicates the State's intent to retain
jurisdiction over Alaska inmates housed in Arizona. The contract
provided that Alaska inmates had the right to seek DOC review of
most classification, discipline and grievance decisions and that any
decision to forfeit an Alaska inmate's good time rested with DOC.
The contract also barred disciplinary action inconsistent with that
permitted by Alaska laws or regulations.
From all this, Judge Shortell could reasonably conclude
that Hertz had not raised a claim of quasi-estoppel because DOC did
not claim in earlier litigation that it had no jurisdiction over
inmates placed at CADC. For this same reason, Judge Shortell could
reasonably conclude that Hertz had not shown that equitable estoppel
applied. [Fn. 6]
DOC's statutory authority
Hertz next argues that DOC forfeited its jurisdiction over
him by transferring him to CADC without providing for an agency or
jurisdictional relationship with CADC. He argues that the State
relinquished jurisdiction over prisoners transferred to private out-
of-state prisons when the legislature repealed AS 33.30.060(b). [Fn.
7]
In 1985, the legislature enacted a comprehensive update
of Alaska's laws on correctional facilities. [Fn. 8] Among the
provisions eliminated was subsection AS 33.30.060(b), which had
expressly provided that Alaska retained jurisdiction over inmates
housed out of state. [Fn. 9] However, because the 1985 statutes did
not permit DOC to transfer inmates to private prisons out of state,
there was no need to "retain jurisdiction" in those circumstances.
[Fn. 10]
As early as 1985, the commissioner of DOC voiced concern
that the legislature's limitations on housing inmates out of state
might cause problems, in light of the prison population limits
imposed by the Cleary FSA, if DOC was not given the funds to build
additional prison facilities. [Fn. 11] In 1992, to address these
prison crowding concerns, AS 33.30.060 (renumbered AS 33.30.031) was
amended to give DOC more flexibility to house inmates outside
Alaska. [Fn. 12] The statute now provides that Alaska inmates may
be sent to private out-of-state prisons if the commissioner finds
that:
(1) there is no other reasonable alternative
for detention in the
state; and (2) the agreement is necessary
because of health or security considerations involving a particular
prisoner or class of prisoners, or because an emergency of prisoner
overcrowding is imminent.[ [Fn. 13]]
Hertz relies on this statutory history to argue that the
State has waived jurisdiction over him. Hertz contends that because
AS 33.30.060(b) has been repealed, the State has no statutory basis
to assert jurisdiction over him in Arizona. Although Alaska retains
jurisdiction over inmates housed in out-of-state public facilities
under the Interstate Corrections Compact (ICC) [Fn. 14] and the
Western Interstate Corrections Compact (WICC), [Fn. 15] those
interstate compacts do not bind private prisons. Furthermore, the
contract between DOC and CADC provides that CADC is an independent
contractor, not an agent of the State. Hertz relies on these facts
to argue that DOC effectively pardoned him by sending him to CADC
because the State has not retained jurisdiction over him by statute
or by creating an agency relationship with CADC.
When the wording of a statute is unclear or ambiguous,
this court looks to legislative history and accepted rules of
statutory construction to interpret the statute. [Fn. 16] The
legislature's intent to retain jurisdiction over Alaska inmates
serving Alaska sentences is clear. As the State points out, Alaska
courts have long recognized that the State retains jurisdiction over
inmates transferred to foreign jurisdictions to serve sentences for
crimes committed in this state. [Fn. 17] Initially, the legislature
did not permit DOC to contract with private out-of-state facilities
to house prisoners, [Fn. 18] but it did so when the State was faced
with prison overcrowding. [Fn. 19] The legislative history of AS
33.30.031 is devoid of any indication that the legislature intended
to retain jurisdiction over prisoners sent to out-of-state public
prisons while surrendering jurisdiction over inmates housed in
private facilities. The contract between DOC and CADC reflects this
understanding of AS 33.30.031: [Fn. 20] DOC retains authority over
all significant decisions involving Alaska inmates housed at CADC.
[Fn. 21] We agree with Judge Shortell that the State has not waived
jurisdiction over Hertz by sending him to Arizona.
Hertz's common law claim
Hertz next argues that DOC waived its jurisdiction over
him by transferring him to a private corporation against his will
and prior to the expiration of his sentence. He relies primarily
on Shields v. Beto, [Fn. 22] a 1967 Fifth Circuit case. In 1933,
Shields was sentenced to 40 years in Texas for the commission of
three felonies. [Fn. 23] After serving slightly more than 1 year of
his Texas sentence, Shields was extradited to Louisiana to complete
a jail term there (Shields had escaped from a Louisiana penitentiary
before his Texas convictions). [Fn. 24] Texas filed no detainer
and, in 1944, Shields was released on parole in Louisiana. Eighteen
years after his release on parole and twenty-eight years after his
extradition to Louisiana, Texas sought to compel Shields to serve
the remainder of his Texas sentence. [Fn. 25] The Fifth Circuit
held that Texas's failure to take any action for twenty-eight years
to reacquire jurisdiction of Shields amounted to a pardon. [Fn. 26]
Shields is easily distinguished from the circumstances of
this case. First, Texas had transferred Shields to Louisiana to
finish serving his Louisiana sentence, not to continue serving his
Texas sentence. Second, Texas took no action to assert its
jurisdiction over Shields until years after he was released on
parole in Louisiana. Hertz, by contrast, has been serving his
Alaska sentence without interruption. Moreover, while Hertz cites
Shields for the principle that DOC "legally waived jurisdiction over
Hertz by deporting him to a foreign sovereignty [sic] prior to the
expiration of his sentence," a later Fifth Circuit case interpreting
Shields concluded that a state waives jurisdiction by transferring
an inmate to another jurisdiction before the expiration of his
sentence only where its action is "so affirmatively wrong or its
inaction so grossly negligent that it would be unequivocally
inconsistent with 'fundamental principles of liberty and justice'
to require a legal sentence to be served in the aftermath of such
action or inaction." [Fn. 27] Applying this standard, two other
federal circuits have found that delays as long as seven years in
requiring an individual to finish serving an unexpired sentence did
not amount to a waiver of jurisdiction by the government. [Fn. 28]
Hertz cites several other cases to argue that the
legislature's failure to expressly provide for jurisdiction over
inmates housed at CADC commutes his sentence. [Fn. 29] But in the
cases cited by Hertz, the court concluded that the state that
transferred the inmate to another jurisdiction to serve a sentence
imposed by that other jurisdiction had failed to retain authority
to retake that inmate once the sentence was completed. [Fn. 30]
Because Hertz was sent to Arizona to serve his Alaska sentence,
these cases are inapposite.
Modern authorities that have considered the question
presented here whether a state waives jurisdiction over an inmate
by transferring him to a private out-of-state prison, entitling the
inmate to unconditional release have uniformly rejected that
claim, recognizing that Shields and modern waiver of jurisdiction
cases do not warrant relief in these circumstances. [Fn. 31]
Does AS 33.30.031(a) violate the prohibition against ex
post facto laws?
Hertz argues that because he committed his crime in 1983,
[Fn. 32] before AS 33.30.031(a) was amended to permit DOC to
contract with private out-of-state prisons, applying that law to him
violates the constitutional prohibition against ex post facto laws
by altering the legal consequences of his crime. But the
constitutional prohibitions on ex post facto laws [Fn. 33] prohibit
"the retrospective application of laws that 'alter the definition
of crimes or increase the punishment for criminal acts.'" [Fn. 34]
Alaska Statute 33.30.031(a) did not punish Hertz for an act
previously committed, which was innocent when done, nor make the
punishment for his crime more burdensome, nor deprive him of any
defense that was available when he killed his victim. [Fn. 35] The
fact that a statute alters a convicted person's circumstances to
his or her disadvantage does not show an ex post facto violation.
[Fn. 36]
Hertz's sentence was not increased when he was placed at
CADC. He is still serving the 40-year term imposed by the superior
court. We agree with Judge Shortell that Hertz did not show an ex
post facto violation.
Has DOC improperly delegated its power to imprison Hertz
to CADC?
Hertz next argues that DOC has impermissibly delegated
core governmental powers to a private agency by contracting with
CADC to house Alaska inmates. Hertz concedes that the delegation
of governmental power to private parties is permissible under Alaska
law. But he argues that the delegation is improper in this case
because CADC is an independent contractor not subject to the State's
control and management and because delegating governmental power to
a private corporation in Arizona is an illegal attempt to apply
Alaska law extra-territorially.
The State agrees that incarceration is a governmental
power. But it argues that DOC's delegation of that power to CADC
is constitutionally permissible because the delegation is authorized
by statute, guided by standards, and falls within a long tradition
in Alaska of assigning the task of imprisonment to foreign
jurisdictions and private halfway houses.
Hertz first argues that DOC has impermissibly delegated
core governmental powers to a private corporation without adequate
standards to guide the exercise of that power. Alaska Statute
33.30.031(a) permits DOC to contract with private prisons only where
necessary to address prisoner health and security considerations or
the emergency of prison overcrowding. Moreover, private prisons
must "provide a degree of custody, care and discipline similar to
that required by the laws of this state." [Fn. 37] This statutory
authorization "sufficiently marks the field within which the
administrator is to act" [Fn. 38] by requiring that inmates are
housed out of state in conditions similar to those required by
Alaska prison management laws, [Fn. 39] DOC regulations [Fn. 40] and
the Cleary FSA. [Fn. 41]
DOC's contract with CADC incorporates this legislative
directive by requiring that CADC adopt DOC policies and procedures
and comply with applicable federal and state laws, corrections
industry standards, and the Cleary FSA. These required procedures
cover all significant aspects of inmate life, including removal of
inmates from work-release; treatment or other programs;
administrative segregation; maximum custody housing; counseling and
mental health; medical and dental care; prisoner grievances;
visitation; prisoner discipline; classification procedures; hearing
advisors; media and public relations; food service standards; and
arts and crafts programs. CADC can revise these policies only with
the consent of DOC.
The contract also defines in detail required disciplinary
processes, limits on the use of force, and the award and forfeiture
of good time. CADC can only impose discipline for offenses listed
in DOC regulations and must follow the hearing process imposed by
the Cleary FSA. An inmate must be provided a copy of a disciplinary
report within five working days after the infraction and is entitled
to a tape-recorded hearing and the assistance of a hearing advisor.
All disciplinary decisions may be appealed to the CADC Warden and
to the Alaska Director of Institutions, and execution of punishment
is stayed pending these appeals. Once the administrative review
process is complete, prisoners can appeal decisions implicating
fundamental constitutional rights to the Alaska Superior Court. [Fn.
42] Although CADC is responsible for reporting on the behavior of
prisoners, all final decisions to award or forfeit good time rest
with DOC.
Similarly, DOC has ultimate control over prisoner
classification decisions, as well as prisoner grievances directed
at CADC's Warden or Assistant Warden. The State can terminate its
contract with CADC in the event of breach or, at its convenience and
without cause, can exercise a partial takeover of any service CADC
is obligated to perform under the contract. And, as the State
points out, inmates have greater opportunities to sue CADC employees
for violations of federal constitutional rights because CADC
employees do not enjoy the qualified immunity accorded state
officials to damages suits under 42 U.S.C. sec. 1983. [Fn. 43]
Because the legislature has tailored AS 33.30.031 to
address specific health, safety and emergency overcrowding issues,
and because DOC has retained ultimate authority over prisoner
discipline and the award and forfeiture of good time, we conclude
that the delegation of the responsibility to house prisoners is not
an unconstitutional delegation of authority.
Hertz also argues that DOC's delegation of authority to
independent contractors like CADC and its employees violates AS
44.17.010 [Fn. 44] and AS 44.17.040, [Fn. 45] which authorize the
executive officer of each Alaska department to assign functions to
subordinate officers and employees. Hertz argues that these
statutes do not permit delegation of governmental functions to an
independent contractor like CADC that is not "subject to the state's
control and management." But AS 33.30.031(a) was enacted more
recently and specifically authorizes DOC to contract with private
prisons out of state. [Fn. 46] "Generally, 'a more specific statute
governs over an otherwise applicable general statute.'" [Fn. 47]
In any event, the key concern of these statutes is that department
heads, in delegating functions and appointing staff, "maintain
appropriate supervision, direction, and control" over their
subordinates. [Fn. 48] DOC's oversight of CADC operations and
finances is more than sufficient to meet this standard.
Hertz also argues that Alaska has exceeded its authority
in contracting to house prisoners at CADC because Alaska cannot
impose its laws on Arizona. To support his claim, Hertz relies on
Healy v. Beer Institute, [Fn. 49] which stands for the general
principle that a state exceeds its authority with legislation that
directly controls commerce that occurs wholly outside its borders.
[Fn. 50]
That case is inapposite. The limitation on extra-
territorial laws in Healy and other cases construing the Commerce
Clause's limitation on the authority of states to burden interstate
commerce is aimed at preventing economic protectionism. [Fn. 51]
The prohibition reaches laws that have a discriminatory effect on
out-of-state economic interests where the state cannot show a
legitimate local purpose that cannot be adequately served by
reasonable nondiscriminatory alternatives. [Fn. 52] Hertz has
failed to show how AS 33.30.031(a) discriminates against interstate
commerce. Also, Hertz has not offered any evidence to suggest that
Arizona has refused to recognize Alaska's jurisdiction over its
inmates at CADC.
The relevance of CADC's status under Arizona law
Finally, Hertz claims that CADC is not properly recognized
as a private prison under Arizona law. Hertz argues that these
claims are relevant to his waiver of jurisdiction claim. But even
if CADC were operating illegally in Arizona, we conclude that this
fact has no bearing on the determination of whether Alaska waived
jurisdiction over Hertz by sending him to CADC.
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Hertz v. State, Memorandum Opinion and Judgment No.
1225 (Alaska App., September 10, 1986).
Footnote 2:
See Hertz v. State, 8 P.3d 1144, 1145 (Alaska App. 2000).
Footnote 3:
In this appeal, Hertz does not challenge the DOC classification
decision that resulted in his transfer to Arizona. In Brandon v.
State, Dep't of Corrections, 938 P.2d 1029 (Alaska 1997), the
Alaska Supreme Court held that decisions to transfer inmates out of
state are adjudicative proceedings that implicate inmates'
constitutional rights to rehabilitation. See id. at 1032-33.
Consequently, such administrative decisions are subject to judicial
review. See id. at 1033. For a discussion of the Brandon decision
in the context of prison privatization see Shymeka L. Hunter, More
Than Just a Private Affair: Is the Practice of Incarcerating Alaska
Prisoners in Private Out-of-State Prisons Unconstitutional? 17
Alaska L. Rev. 319, 337-39 (2000).
Footnote 4:
Cleary v. Smith, 3AN-81-5274 CI (Alaska Super., filed Aug. 13,
1981). The superior court continues to monitor compliance with the
prison condition requirements of the 1990 Cleary FSA. See generally
Hertz v. Cleary, 835 P.2d 438, 440 (Alaska 1992).
Footnote 5:
Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 26
(Alaska 1998) (quoting Jamison v. Consolidated Utilities, Inc., 576
P.2d 97, 102 (Alaska 1978)).
Footnote 6:
See Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989)
(equitable estoppel requires "the assertion of a position by conduct
or word, reasonable reliance thereon by another party, and resulting
prejudice") (quoting Jamison, 576 P.2d at 102).
Footnote 7:
See former AS 33.30.060(b); ch. 10, sec. 133, SLA 1960, which
provided:
An
authority, receiving physical custody for the purpose of
incarceration of a person sentenced by a court under the terms of
an agreement made under this section, shall be considered as acting
solely as agent of this state. This state retains jurisdiction over
a person incarcerated in an institution of another state, the United
States, or a political subdivision of this state.
Emphasis added.
Footnote 8:
See Commentary and Sectional Analysis for the 1985 Amendments
to Alaska's Laws on Correctional Facilities and the Imprisonment and
Rehabilitation of Offenders, Committee Substitute for House Bill 114
(HESS), House Journal Supp. No. 35 at 1 (March 25, 1985).
Footnote 9:
See Dwyer v. State, 449 P.2d 282, 283 (Alaska 1969).
Footnote 10:
Former AS 33.30.060 (1985) provided that:
The commissioner
shall determine the availability of state prison facilities suitable
for the detention and confinement of persons held under authority
of state law. If the commissioner determines that suitable state
prison facilities are not available, the commissioner may enter into
an agreement with a public agency to provide necessary facilities.
Correctional facilities provided through agreement may be in this
state or in another state. The commissioner may not enter into an
agreement with an agency unable to provide a degree of custody, care,
and discipline similar to that required by the laws of this state.
Former AS 33.30.062(a) (1985) provided that:
The commissioner
may enter into an agreement with a privately operated correctional
facility, but only if the facility is located in the state and if
the purpose of the agreement is to involve prisoners in a work or
rehabilitation furlough program established under this chapter, to
provide necessary facilities under AS 33.30.282 33.30.288
[correctional restitution centers], or to confine prisoners convicted
of a misdemeanor. ....
Footnote 11:
See Committee Minutes, House Judiciary Standing Committee
hearing on H.B. 114 (April 17, 1985).
Footnote 12:
See Committee Minutes, House Finance Committee hearing on H.B.
596 (May 14, 1992).
Footnote 13:
AS 33.30.031.
Footnote 14:
See former AS 33.36.040 (1986) (now AS 33.36.010).
Footnote 15:
See former AS 33.36.100 (1986) (now AS 33.36.060).
Footnote 16:
See Brant v. State, 992 P.2d 590, 593 (Alaska App. 1999)
(Mannheimer, J., concurring); see also Romann v. State, Dep't of
Transportation and Public Facilities, 991 P.2d 186, 190-91 (Alaska
1999) (quoting State v. Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982)
("[S]ince words are necessarily inexact and ambiguity is a relative
concept, we ... turn to the legislative history, mindful that the
plainer the language, the more convincing the contrary legislative
history must be.")).
Footnote 17:
See Donnelly v. State, 516 P.2d 396, 402 (Alaska 1973); Dwyer,
449 P.2d at 282-84; Application of House, 352 P.2d 131, 134-36
(Alaska 1960).
Footnote 18:
See former AS 33.30.062(a) (1985), supra, note 9.
Footnote 19:
See AS 33.30.031(a) (1986).
Footnote 20:
See Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1247 (Alaska
1995) (quoting Norman J. Singer, 2B Sutherland Statutes and Statutory
Construction, sec. 49.03 (5th ed. 1992) ("A 'contemporaneous and
practical interpretation of a statute by the executive officer[]
charged with its administration and enforcement ... constitutes an
invaluable aid in determining the meaning of a doubtful statute.'").
Footnote 21:
See Agreement Between State of Alaska and Corrections
Corporation of America, Inc., ASPS # 99-001 (June 29, 1998) sec. 3.4
and sec. 4.26 (CADC will relinquish physical custody on demand of
State); sec. 3.5 (CADC must obtain written pre-approval of State
prior
to transferring prisoners to other contract facilities); sec. 4.1
and sec. 4.41 (CADC must comply with Cleary FSA); sec. 4.6(J) (CADC
will
cooperate with State parole process); sec. 4.21 (CADC disciplinary
decisions may be appealed to DOC); sec. 4.23 (final decision on award
or forfeiture of good time rests with State); sec. 4.29 (CADC will
hold hearings on request of State); sec. 4.33 (State will defend
any post-conviction action); sec. 4.34 (State may inspect CADC at
all reasonable
times to ensure it maintains standards compatible with those of the
State).
Footnote 22:
370 F.2d 1003 (5th Cir. 1967).
Footnote 23:
See id.
Footnote 24:
See id. at 1004.
Footnote 25:
See id.
Footnote 26:
See id. at 1006.
Footnote 27:
Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).
Footnote 28:
See United States v. Martinez, 837 F.2d 861, 864-65 (9th Cir.
1988) (because of clerical error, more than seven years lapsed
between federal conviction and order to serve sentence); Mathes v.
Pierpont, 725 F.2d 77, 78-79 (8th Cir. 1984) (for unexplained
reasons, Oklahoma released detainer on escapee while he was serving
federal sentence and then waited seven years, after inmate had been
released on parole, to rearrest him on state charge).
Footnote 29:
See Ex parte Drake, 233 P.2d 931, 935-36 (Cal. App. 1951),
opinion vacated, 238 P.2d 566 (Cal. 1951); Jones v. Morrow, 121 P.2d
219, 223 (Kan. 1942); Ex parte Guy, 269 P. 782, 784-85 (Okla. Crim.
App. 1928).
Footnote 30:
See Drake, 233 P.2d at 931-32, 935-36; Jones, 121 P.2d at 222-
24; Guy, 269 P. at 782-83, 784-85.
Footnote 31:
See Evans v. Holm, 114 F. Supp. 2d 706, 709-13 (W.D. Tenn.
2000); Arnold v. Colorado Dep't of Corrections, 978 P.2d 149, 150,
154 (Colo. App. 1999); cf. Blango v. Thornburgh, 942 F.2d 1487, 1491
(10th Cir. 1991); Venable v. Thornburgh, 766 F.Supp. 1012, 1014 (D.
Kan. 1991) (rejecting argument that state lost jurisdiction by
transferring inmate to out-of-state federal prison to serve term
imposed by sending state).
Footnote 32:
Although Hertz relies on the date he was convicted (1984), the
date he committed his offense is the relevant date for ex post facto
analysis. See Parker v. State, 667 P.2d 1272, 1274 (Alaska App.
1983).
Footnote 33:
See U.S. Const. art. I, sec.sec. 9, 10; Alaska Const. art.
I, sec. 15.
Footnote 34:
Amin v. State, 939 P.2d 413, 416 (Alaska App. 1997) (quoting
Collins v. Youngblood, 497 U.S. 37, 43 (1990)).
Footnote 35:
See Collins, 497 U.S. at 42.
Footnote 36:
See State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991).
Footnote 37:
AS 33.30.031(a); see also Anchorage v. Anchorage Police Dep't
Employees Ass'n, 839 P.2d at 1080, 1088 (Alaska 1992) (legislative
expression of intent provided "standard" limiting delegatee's
discretion).
Footnote 38:
State v. Fairbanks North Star Borough, 736 P.2d 1140, 1143
(Alaska 1987) (quoting Synar v. United States, 626 F.Supp. 1374,
1383-89 (D.D.C. 1986)).
Footnote 39:
AS 33.30.
Footnote 40:
22 AAC.
Footnote 41:
Cf. Tulsa County Deputy Sheriff's Fraternal Order of Police v.
Board of County Comm'rs of Tulsa County, 995 P.2d 1124, 1129 (Okla.
2000) (finding that legislature did not impermissibly delegate rule-
making authority because county jails were subjected to the same
standards whether they were operated by a county or private company).
Footnote 42:
See AS 33.30.295.
Footnote 43:
See Richardson v. McKnight, 521 U.S. 399, 412 (1997).
Footnote 44:
AS 44.17.010 provides:
The principal executive
officer of each state department may assign the functions vested in
the department to subordinate officers and employees.
Footnote 45:
AS 44.17.040 provides:
The principal executive
officer of each department may establish necessary subordinate
positions, make appointments to these positions, and remove persons
appointed within the limitations of appropriations and subject to
state personnel laws. Each person appointed to a subordinate
position established by the principal executive officer is under the
supervision, direction, and control of the officer.
Footnote 46:
AS 44.10.010 and AS 44.10.040 were enacted in 1959. See ch.
64, sec.sec. 3, 5, SLA 1959.
Footnote 47:
O'Callaghan v. Rue, 996 P.2d 88, 99 n.58 (Alaska 2000) (quoting
Jenkins v. Daniels, 751 P.2d 19, 22 (Alaska 1988)).
Footnote 48:
State v. Breeze, 873 P.2d 627, 633 (Alaska App. 1994).
Footnote 49:
491 U.S. 324 (1989).
Footnote 50:
See id. at 336-37.
Footnote 51:
See New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273-74
(1988).
Footnote 52:
See Oregon Waste Systems, Inc. v. Department of Envtl. Quality,
511 U.S. 93, 93-94 (1994).
