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State v. Combs (2/14/2003) ap-1857
State v. Combs (2/14/2003) ap-1857
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
STATE OF ALASKA, )
) Court of Appeals No.
A-8115
Appellant, )
Trial Court No. 4FA-00-1229 Cr
)
v. )
) O P I N
I O N
THOMAS CHARLES COMBS, )
)
Appellee. )
[N0. 1857 February 14, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: John K. Bodick, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. Susan M. Carney, Assistant
Public Advocate, Fairbanks, and Brant G.
McGee, Public Advocate, Anchorage, for Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Thomas Charles Combs pleaded no contest to attempted
first-degree assault, and he was sentenced to a term of
imprisonment. After his sentencing, Combs asked the superior
court to issue a supplemental order barring the Department of
Corrections from housing Combs in the same facility as Edwin
Kent, another convicted prisoner who had assaulted Combs (by
shooting him in the back) in 1996. The prosecuting attorney an
assistant district attorney, an employee of the Department of Law
told the court that the State did not object to the proposed
order. The superior court then granted Combss motion, amending
the criminal judgement by adding a provision that bars the
Department of Corrections from housing Combs and Kent in the same
correctional facility.
Approximately five weeks later, another office within
the Department of Law (the Central Office of the Criminal
Division) challenged this portion of the judgement on behalf of
the Department of Corrections. Relying on AS 33.30.061(a)1 and
Rust v. State2, the Central Office argued that the superior court
had no authority to restrict the discretion of the Department of
Corrections concerning where (and with whom) Combs would be
imprisoned.
The superior court declined to delete the challenged
provision from the judgement, and this appeal followed.
We agree with the State that the sentencing court had
no authority to order the Department of Corrections to hold Combs
and Kent in separate facilities. In Rust, our supreme court
said:
We think it clear that the matter of a
prisoners classification, which encompasses
designation of the prison facility to which
the prisoner is to be confined, is committed
to the administrative discretion of the
[Department] of Corrections, and not to the
sentencing courts of Alaska. We thus hold
that the sentencing court does not have the
authority to designate a particular prison
facility in which a prisoner is to be
confined.
582 P.2d at 137-38. In an accompanying
footnote, the supreme court added:
This conclusion reflects the principles
which govern the powers of Alaskas judiciary
in relation to those of the executive. In
Public Defender Agency v. Superior Ct., Third
Judicial District, 534 P.2d 947, 950 (Alaska
1975), we articulated these principles in the
following manner:
When an act is committed to executive
discretion, the exercise of that
discretion within constitutional bounds
is not subject to the control or review
of the courts. To interfere with that
discretion would be a violation of the
doctrine of separation of powers.
Id. at 138 n.11.
Combs argues that, because the
superior court did not direct the Department
of Corrections to hold Combs in a particular
prison facility, the superior courts order
does not violate Rust. But this
interpretation of Rust is too narrow. As can
be seen from the excerpt quoted above, Rust
stands for the broader proposition that a
sentencing court can not interfere in any
aspect of a prisoners classification.
Although prisoner classification
encompasses [the] designation of the prison
facility to which the prisoner is to be
confined, this is but one aspect of the
Departments classification authority. The
Departments authority includes other matters
as well. See, for instance, LaBarbera v.
State, 598 P.2d 947 (Alaska 1979), where the
supreme court held that a sentencing court
infringed the authority of the Department of
Corrections when the court ordered the
Department to release a prisoner to a
particular residential rehabilitative
program. The supreme court stated that a
sentencing court has [no] authority to
designate ... a particular program for [a
defendants] rehabilitation.3 And see State
v. Hiser, 924 P.2d 1024 (Alaska App. 1996),
where this Court held that a sentencing court
could not order the Department of Corrections
to provide particular medical care to a
defendant.
We thus conclude that the
Department of Corrections has the sole
discretion to decide whether Combs needs to
be housed separately from another identified
inmate. The superior court exceeded its
authority when it ordered the Department to
house Combs and Kent in separate correctional
facilities.
The remaining question is whether
the Department of Corrections had the right
to seek correction of Combss judgement.
As explained above, when Combs
asked the superior court to direct the
Department to house him apart from Kent, the
prosecuting attorney announced that the State
had no opposition to Combss request. Combs
argues that, under the principle of
collateral estoppel, the Department of
Corrections is now bound by the prosecuting
attorneys decision.
Initially, we are unsure whether
Combs can invoke the doctrine of collateral
estoppel to stop the Department of
Corrections from attacking the challenged
provision of the judgement. We have just
ruled that the superior court (in its role as
a sentencing court) had no authority in
other words, no subject-matter jurisdiction
to order the Department of Corrections to
hold Combs and Kent in separate correctional
facilities. Because the superior court
exceeded its authority when it issued this
provision of the judgement, this provision of
the judgement was void for purposes of Alaska
Civil Rule 60(b)(4), and the Department of
Corrections could seek relief from the
judgement under that rule. (We discussed
this principle at some length in State v.
Superior Court, 40 P.3d 1239, 1241-43 (Alaska
App. 2002)).
Neither party to the present appeal
has discussed the question of whether the
doctrines of res judicata or collateral
estoppel prevent a litigant from attacking a
void judgement under Civil Rule 60(b)(4).
Although we note this legal issue, we need
not resolve it because, as we explain next,
we conclude that the Department of
Corrections is not collaterally estopped by
the Department of Laws failure to oppose the
challenged provision of the judgement.
A party claiming the benefit of
collateral estoppel must establish three
elements: (1) that the issue decided in
prior litigation was precisely the same as
the issue currently litigated; (2) that the
prior litigation resulted in a final
judgement deciding the merits of this issue;
and (3) that the parties to the current
litigation are either the same as the parties
to the prior litigation or are in privity
with those prior parties.4 Here, the dispute
centers on the third element. Combs asserts
that the Department of Corrections must be
deemed in privity with the Fairbanks district
attorneys office (a branch of the Department
of Law), since both agencies are arms of the
state government, both are charged with
administration of components of the criminal
justice system, and both are represented by
attorneys employed by the Department of Law.
The Alaska Supreme Court has noted
that the term privity (as used in the context
of the collateral estoppel doctrine) has no
firm definition. Rather, it is a shorthand
way of expressing assurance that the non-
party has had adequate notice and opportunity
to be heard, and that its rights and
interests have been protected.5 Generally
speaking, officials of the same government
are in privity with each other.6 However,
each case must be examined on its own facts.
The crucial question is whether, in the
earlier litigation, the governments
representative had the authority to represent
the governments interests in a final
adjudication of the issue in controversy.7
For example, in Briggs v. Dept. of
Public Safety, 732 P.2d 1078 (Alaska 1987),
the supreme court held that, in an
administrative license revocation proceeding,
the Department of Public Safety was
collaterally estopped from relitigating the
issue of whether law enforcement officers had
taken adequate steps to preserve an arrested
motorists breath sample. The Department of
Law had already litigated (and lost) that
same issue during suppression proceedings in
a related criminal prosecution. The supreme
court held that the Department of Public
Safety was in privity with the Department of
Law because the Department of Public Safetys
interests were adequately represented by the
district attorneys office that defended the
suppression motion.8
On the other hand, in Holmberg v.
Division of Risk Management9, the supreme
court ruled that the State Division of Risk
Management was not in privity with the State
Division of Retirement and Benefits. This
case arose when Holmberg, a former employee
of the Division of Risk Management, applied
to the Workers Compensation Board for
occupational disability benefits. The
Division of Risk Management disputed her
claim, and the Workers Compensation Board
ruled in Risk Managements favor on Holmbergs
claim for permanent total disability
benefits. Holmberg then appealed to the
superior court.
While Holmbergs appeal was pending,
the Public Employees Retirement Board (in a
separate administrative proceeding) awarded
Holmberg occupational disability benefits
based on its determination that Holmberg was,
in fact, permanently and totally disabled as
a result of injuries she sustained at work.
After the Retirement Board issued this
ruling, Holmberg apprised the superior court
of the Retirement Boards action, and she
raised a claim of collateral estoppel. That
is, Holmberg argued that the Division of Risk
Management was now precluded from contesting
her permanent occupational disability because
another arm of state goverment (the
Retirement Board) had decided this issue in
her favor. After the superior court rejected
Holmbergs collateral estoppel claim, she
appealed to the supreme court.10
The supreme court concluded that
the Workers Compensation Board was not bound
by the Retirement Boards decision because the
two divisions of state government involved in
the litigation the Division of Risk
Management and the Division of Retirement and
Benefits were not in privity. The court
explained that, in the proceedings before the
Retirement Board, the Division of Retirement
and Benefits had not appeared as an adversary
or an advocate representing the State against
Holmberg, but rather as the arm of state
government charged with administering the
Public Employees Retirement System.11
In Combss case, the asserted
privity between the Department of Law and the
Department of Corrections presents a close
question. Both departments are agencies of
the State of Alaska, and they each concern
themselves with the functioning of the
criminal justice system. Moreover, when the
Department of Corrections (or any other
agency of state government) goes to court,
these agencies are typically represented by
an attorney employed by (or hired through)
the Department of Law.
However, the Department of Laws
role as prosecutor (through the various
district attorneys offices around the state)
differs from its role as legal representative
of the various agencies of state government.
It is not difficult to imagine circumstances
in which the interests of the Department of
Law would differ from the interests of the
Department of Corrections. Indeed, these
differences are occasionally aired at
sentencing hearings, when the prosecutor (a
Department of Law employee) recommends a
different sentence from the one recommended
by the probation officer who authored the pre-
sentence report (a Department of Corrections
employee). For instance, the prosecutor
might feel that it was important to place a
defendant on probation following a term of
imprisonment, while the Department of
Corrections might take the position that the
defendant was unamenable to supervision and
should receive flat time (i.e., a sentence
that does not include suspended time and
probation).
Combss case involves an
infringement by the superior court on the
Department of Corrections statutory authority
and prerogatives regarding the custody of
sentenced prisoners. This infringement took
the form of a supplemental directive inserted
into Combss judgement after sentence was
imposed. This directive did not alter the
terms of Combss sentence, but only affected
the Department of Corrections administrative
authority over Combs as a prisoner.
The prosecutors of the Department
of Laws criminal division frequently interact
with agents of the Department of Corrections
both Corrections employees and the lawyers
employed by the Department of Law to
represent the civil interests of the
Department of Corrections. But the primary
duties of prosecutors are screening potential
criminal cases, litigating criminal charges,
and representing the interests of the State
and the victim at sentencing. Prosecutors do
not generally appear in court to advocate the
administrative concerns of the Department of
Corrections. In fact, as pointed out above,
a prosecutor may advocate a position that
runs counter to the Department of Corrections
administrative concerns.
Here, the issue involves the
Department of Corrections legal rights and
authority as the custodian of imprisoned
criminals vis-…-vis the authority of the
superior court in its role as the agency of
state government that imposes sentence on
convicted criminals. In this type of case,
the assertion of the Department of
Corrections rights is primarily a civil
concern not a concern that would inevitably
be handled (or even considered) by the
prosecutor assigned to the underlying
criminal case.
As noted above, the supplemental
directive issued by the superior court in
this case does not alter the terms of Combss
sentence. Instead, it restricts the places
in which the Department of Corrections may
house Combs to carry out that sentence. As
the State notes in its brief, the superior
courts directive apparently forbids the
Department from even temporarily housing
Combs and Kent within the same facility for
purposes of medical care or transportation to
a court appearance. It forbids the
Department from pursuing alternative
strategies to protect Combss physical safety
strategies such as placing Combs in a
separate housing unit within the same
correctional facility or using other methods
of segregation.
These concerns were not aired in
court. Combss request was served on the
prosecutor, not on a representative of the
Department of Corrections, and the prosecutor
filed a non-opposition to Combss request.
That is, the prosecutor failed to question
the sentencing courts authority to restrict
the Department of Corrections actions. We
therefore conclude that Combss case is not
like the situation presented in Briggs.
In Briggs, the supreme court found
that the Department of Public Safety and the
district attorneys office shared an identical
interest in winning the breath sample
preservation issue, and that the prosecutors
motive to advocate this interest at the
suppression hearing was precisely the same as
the Department of Public Safetys motive to
advocate that same interest at the license
revocation proceeding. Based on these
findings, the court ruled that the Department
of Public Safety was in privity with the
Department of Law a shorthand way of saying
that the Department of Public Safety was
estopped from relitigating the breath sample
preservation issue. But in Combss case, the
prosecutors office failed to advocate and
had no particular motive to advocate the
Department of Corrections statutory rights
and administrative concerns.
A footnote in the Briggs opinion
shows that the supreme court was mindful that
the interests of the prosecutors office might
diverge from the interests of other criminal
justice agencies, thus defeating a finding of
privity:
[The situation in the present case] is
distinguishable from situations where the
differing interests of the prosecutor and the
administrative agency might justify a refusal
to apply collateral estoppel. ...
[Depending on the circumstances, a]
prosecutors decision to dismiss or to
stipulate might reflect interests not shared
by the administrative agency and thus should
not be used against the agency, which was not
entitled to appear at the criminal
proceeding.
Briggs, 732 P.2d at 1083 n.9.
We conclude that Combss case presents the type of
situation discussed in this footnote a situation in
which the Department of Corrections should not be
deemed to be in privity with the prosecutors office.
Accordingly, we hold that the prosecutors failure to
oppose Combss request did not estop the Department of
Corrections from asking the superior court to correct
its illegal order.
The decision of the superior court is REVERSED. The
superior court is directed to amend Combss judgement by striking
the provision that forbids the Department of Corrections from
housing Combs and Kent in the same correctional facility.
_______________________________
1 The commissioner [of corrections] shall designate the
correctional facility to which is a prisoner is to be committed
to serve a term of imprisonment ... .
2 582 P.2d 134, 137-38 (Alaska 1979) (holding that [a]
sentencing court does not have the authority to designate a
particular prison facility in which a prisoner is to be
confined).
3 LaBarbera, 598 P.2d at 949.
4 Briggs v. Dept. of Public Safety, 732 P.2d 1078, 1081
(Alaska 1987).
5 Holmberg v. Division of Risk Management, 796 P.2d 823,
827 (Alaska 1990), quoting Alaska Foods, Inc. v.
Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska
1989).
6 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-
03; 60 S.Ct 907, 916-17; 84 L.Ed. 1263 (1940);
Holmberg, 796 P.2d at 825.
7 Holmberg, 796 P.2d at 825, quoting Adkins, 310 U.S. at
403, 60 S.Ct. at 917.
8 Briggs, 732 P.2d at 1082-83.
9 796 P.2d 823 (Alaska 1990).
10Id. at 828.
11Id. at 828-29.
