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Hertz v. Cleary and Alaska Board of Parole (5/29/92), 835 P 2d 438
THE SUPREME COURT OF THE STATE OF ALASKA
SIDNEY HERTZ, )
) Supreme Court No. S-4261
v. ) Superior Court No.
) 3AN-81-5274 CIVIL
MICHAEL CLEARY, DEMETRY KENEZUROFF, )
HARRY MORGAN, BOB OWEN, THOMAS )
WALTERS, and ERNEST MORGAN; ROBERT )
SMITH, Commissioner, Department of ) O P I N I O N
Health and Social Services; ROGER )
ENDELL, Director, Division of Adult )
Corrections; VERON CAULKINS, )
Assistant Director, Division of )
Adult Corrections, Department of )
Health and Social Services; REVEREND )
WILLIAM LYONS, BEVERLY DUNHAM, )
FREDERICK PETTYJOHN, AL WIDMARK, )
and CONRAD MILLER, all of the Alaska )
Parole Board; SAMUEL TRIVETTE, )
Executive Director of the Alaska )
Board of Parole, and their )
subordinates, employees and agents, )
Appellees. ) [No. 3846 - May 29,
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Karen L. Hunt, Judge.
Appearances: Sidney R. Hertz, Pro Per.
Michael J. Stark, Assistant Attorney General,
Charles E. Cole, Attorney General, Juneau,
Philip R. Volland, Rice, Volland and Gleason,
Anchorage, and Vance A. Sanders, Alaska Legal
Services, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, and Compton, Justices.
[Moore, Justice, not participating.]
RABINOWITZ, Chief Justice.
The central contention in this appeal is that the
superior court erred in failing to grant Sidney Hertz's motion to
intervene as a pro se plaintiff in the Cleary class action
litigation challenging prison conditions.
I. FACTS AND PROCEEDINGS.
The Cleary litigation began in 1981 as a Civil Rule 23
class action challenging the conditions of Alaska's correctional
facilities. The class consisted of all inmates who were or would
be incarcerated in Alaska prisons (denominated subclasses A and
B) and Alaska inmates serving sentences in Federal facilities
(denominated subclass C). In January 1983, the superior court
approved the parties' partial settlement agreement, which
pertained to subclasses A and B. A separate settlement agreement
concerning subclass C was entered in February 1983. The class C
settlement agreement provided for the return of Alaska prisoners
upon their request by December 31, 1987, contingent on the
construction of a new correctional facility. The new facility,
Spring Creek Correctional Center, was subsequently built.
Numerous issues were reserved for trial, which was held
in 1985. Although the superior court found that facilities were
not currently unconstitutionally overcrowded, the court set
"presumptive population caps," required the Department of
Corrections (Department) to prepare a study on population of the
prison system, and indicated its intent to hold a hearing on the
prison overcrowding issue and various other issues. In 1986, the
superior court entered its final order. The Department appealed
and the class cross-appealed the superior court's order. The
appeal was ultimately stayed to allow settlement negotiations.
In December 1987, the superior court appointed a
standing compliance monitor to oversee compliance with the
partial settlement agreement. Various issues concerning
compliance with and interpretation of the partial settlement
agreement were litigated in the superior court through 1989, when
efforts at settlement were renewed. On August 1, 1990, the
negotiation efforts of the parties and the standing compliance
monitor culminated in the proposed Final Settlement Agreement
The proposed FSA and an analysis of the settlement by
the attorney representing the class were distributed to all class
members in the first week of August. The comment period was
scheduled to close on September 4, but comments were accepted
until September 17. The proposed FSA was amended to address
comments from class members, including comments from Sidney
Hertz. The amended FSA, as well as all of the comments of class
members, were presented to a special master who concluded that
the notification and comment procedures were both reasonable and
adequate. In its approval of the FSA the superior court adopted
the special master's findings and held that the provisions of the
FSA were reasonable and in the best interests of the class.
Prior to the comment period, Sidney Hertz moved to
intervene in the Cleary litigation as a pro se plaintiff. The
class members and the Department (collectively referred to as
Cleary) opposed Hertz's intervention as untimely because at the
time of Hertz's motion, the settlement negotiations were
substantially completed. Cleary also argued that Hertz was
already a class member whose interests were adequately
Hertz also filed a motion to extend the comment period
to allow him to submit his proposed changes to the FSA. Before
the superior court ruled on Hertz's motion to extend the time for
comment, Hertz filed his proposed changes to the FSA. Thus, the
court found that his motion for an extension was moot. However,
the superior court did not rule on Hertz's motion to intervene
and treated his motions and proposed changes as timely comments
on the proposed FSA. Hertz now appeals, alleging that the
superior court erred by failing to allow him to intervene. Hertz
also raises several issues in his points on appeal relating to
the superior court's failure to find constitutional violations in
regard to the subjects he discussed in his proposed changes to
II. DID THE SUPERIOR COURT ABUSE ITS DISCRETION IN FAILING TO
ALLOW HERTZ TO INTERVENE AS A PRO SE PLAINTIFF?1
Hertz argues that the superior court erred in denying
his motion to intervene.2 He argues that the court should have
allowed his intervention on behalf of the inmates of Spring Creek
Correctional Facility because he alleges that Spring Creek
inmates are not members of any class included in the settlement
agreement. Cleary correctly argues that "[i]ntervention
may only be granted if the applicant establishes a right to
intervene under Alaska Civil Rule 24(a) or grounds for permissive
intervention under Alaska Civ. R. 24(b)." In State v. Weidner,
we set out a four part test to determine when the court is
required to grant intervention as a matter of right under Civil
(1) the motion must be timely; (2) the
applicant must show an interest in the
subject matter of the action; (3) it must be
shown that this interest may be impaired as a
consequence of the action; and (4) it must be
shown that the interest is not adequately
represented by an existing party.
684 P.2d 103, 113 (Alaska 1984) (citation omitted).
In order to satisfy the standard for permissive
intervention under Civil Rule 24(b), the application must be
timely and the intervention must not impair the rights of the
original parties. Alaska R. Civ. P. 24(b). Cleary asserts that
Hertz did not establish grounds that would justify allowing
intervention. (1) Was Hertz's application to
Hertz did not move to intervene until the Cleary
settlement negotiations were substantially concluded. Given this
circumstance we hold it was not an abuse of discretion on the
superior court's part to hold that the motion to intervene was
untimely. Further, intervention at such a late stage in the
Cleary settlement process would have impaired the rights of other
class members. Cleary correctly points out that the
approximately 2,500 class members are constantly in flux. Thus,
allowing Hertz to intervene would have destroyed the efficiency
of a class action and would require the reconsideration of issues
that have been resolved over nine years of litigation and
(2) Did Hertz establish that his interests were impaired by the
FSA and that his interests were not represented adequately
by the class?
Hertz based his motion to intervene in part upon
assertions that the inmates in Spring Creek are not included in
the plaintiff class of the FSA and their interests are not
represented by present class members. Cleary argues that the
Spring Creek inmates are included in the plaintiff class, citing
as support FSA I.D.. That section of the FSA provides that the
agreement is binding upon all inmates "who are or will in the
future be incarcerated in correctional facilities owned or
operated by the state."
Hertz also argues that the plaintiffs' attorney failed
to keep him informed and "showed little concern or interest in
prisoners' rights since Attorney Volland spend [sic] only 55 days
in negotiations on this action between 1987-1990." While Hertz's
assertion that Volland spent 55 days is correct, his conclusion
is without factual support in the record. The superior court
the representation of the class by Mr.
Volland has been excellent. It has been
competent. It has been professional and at
all times it has been pursued with concerns
both that the class know what was going on,
understand what was going on, and have
repeated and ample opportunity to participate
in what was going on by feedback first to
him, prior to negotiations, during the
negotiations and to the compliance monitors
and the court during this period in which the
final settlement agreement has been under
consideration by members of the class.
The court's conclusion is supported by the four memoranda,
detailing the progress of the litigation and settlement
negotiations, sent to class members by Attorney Volland since
November 1987. Volland also asserts that he attempted to respond
to all correspondence from class members, and that he actually
responded to Hertz's letter of January 1990.
Hertz further asserts that he should be allowed to
intervene because Volland refused to bring an action for
violations of the FSA. Cleary correctly argues that Hertz's
dissatisfaction with the grievance procedure does not entitle
Hertz to intervene. Cleary further properly argues that inmates
are required to file grievances with the standing compliance
monitor before bringing an action in court and that an action
could not have been brought because Hertz never filed a grievance
with the monitor.
Hertz has failed to demonstrate that his interests have
not been represented adequately by the class members. In State
v. Weidner, 684 P.2d 103, 113 (Alaska 1984), we explained that
inadequacy of representation by the existing party requires a
showing of "collusion, adversity of interest, possible
nonfeasance, or incompetence . . . . Even with a cautious
approach toward the denial of intervention, where there is
virtual identity of existing and would-be parties' interests,
representation is adequate." (Citations omitted). Here, Hertz
has failed to show any of the elements necessary to demonstrate
inadequacy of representation. Further, he has not demonstrated
that his interests differ from those of the plaintiff class.3
Thus, we conclude that the superior court did not err in denying
Hertz's motion to intervene.4
III. DID THE SUPERIOR COURT ERR IN FAILING TO MAKE VARIOUS
RULINGS REQUESTED BY HERTZ?
Hertz argues that the superior court erred in failing
to rule that (1) the Department must segregate inmates with AIDS
from the general prison population; (2) the Department must
distinguish between inmates in punitive and administrative
segregation in House I of Spring Creek Correctional Center; (3)
Spring Creek Correctional Center's photocopying procedure is
unconstitutional; (4) Section VII C. 11 of the FSA violates due
process because it allows the disciplinary committee to consider
evidence outside the record; (5) the Department acted arbitrarily
and capriciously in denying computers to Spring Creek inmates;
and (6) the FSA does not clearly define special occasions during
which inmates can receive Alaska Native foods.
(1) Assertion that the Department must segregate inmates
with AIDS from the general prison population.
In his Supplemental Proposal for Clarification and
Objection to Final Settlement Agreement and Order (Supplemental
Proposal), Hertz raised his objection to prisoners with AIDS
working in the kitchen and asserts that all prisoners with AIDS
must be segregated from the general prison population. The
record shows that the subject of the segregation of prisoners
infected with AIDS was never at issue in the Cleary litigation or
in the FSA. This issue is raised for the first time in this
proceeding in this appeal. Furthermore, Hertz devotes only two
paragraphs to this claim. In this regard we have held "[w]here a
point is not given more than a cursory statement in the argument
portion of a brief, the point will not be considered on appeal."
Wood v. Collins, 812 P.2d 951, 957 n.8 (Alaska 1991) (citations
Given the above we hold that Hertz has not shown that
the superior court's failure to rule on this issue renders
invalid the superior court's approval of the FSA.5
(2) The Department must distinguish between inmates in
punitive and administrative segregation in House I
of Spring Creek Correctional Center.
Hertz argues that the department does not distinguish
between inmates in punitive and administrative segregation in
House I of Spring Creek. Cleary contends that Hertz's arguments
"[do] not affect the legitimacy of the FSA." According to
Cleary, the FSA provides for access to all programs for all
prisoners including those in Spring Creek House I and Hertz's
claims concerning the Department's implementation of the FSA
should be addressed through the administrative grievance
procedure before the court will hear the grievance. The FSA,
Section IX. B. 2 provides: "An inmate must first exhaust the
administrative grievance procedure set out in Section VII.E prior
to filing an action alleging noncompliance with this agreement."
Given the above we conclude that Hertz has failed to
exhaust his administrative remedies concerning this issue and
thus we do not reach the merits of Hertz's contention.
(3) Spring Creek Correctional Center's photocopying
procedure is unconstitutional.
Hertz argues that the Department must provide prisoners
with five free pieces of mail per week, in addition to free
photocopying services in order to allow "meaningful access to the
courts." This argument was raised earlier in Hertz's
As Cleary correctly notes, the FSA already provides for
the five pieces of mail for indigent inmates. FSA V.D.7 The
issue of photocopying was not raised in regard to the FSA and is
not properly raised as a challenge to the FSA. However, the FSA
does provide for access to a typewriter, paper and carbon paper
or a typing service for the preparation of legal documents. FSA
Hertz also argues that the Spring Creek photocopying
procedure is unconstitutional because the confidentiality of
documents is not preserved and because advance copies of the
prisoners' documents may be sent to the Attorney General's office
or copies may be lost. This issue was briefly raised in the
As to this issue, we again conclude that Hertz has
failed to exhaust his available administrative remedies and thus
the issue will not be addressed on its merits in this appeal.
(4) Section VII.C.11 of the FSA violates due process
because it allows the disciplinary committee to
consider evidence outside the record.
Hertz argues that VII.C.11 of the FSA violates due
process because it allows the prison disciplinary committee to
consider evidence outside the record. That section provides
11. The disciplinary hearing shall
occur in two phases, known as the
adjudicative phase, which must be directed at
determining whether the inmate committed the
alleged infraction, and the dispositive
phase, directed toward what sanction is to be
imposed. The adjudicative and dispositive
phases of the hearing shall proceed in
accordance with 22 AAC 05.420.6
However, Hertz's challenge is misinformed. Section
VII.C.13 of the FSA states "[t]he determination of an inmate's
guilt must be based only on evidence presented at the hearing."
Additionally, Cleary sets forth two other persuasive arguments
that Hertz's challenge of this provision of the FSA should not be
reached by the court. First, the issue was raised for the first
time on appeal. Williams v. Alyeska Pipeline Serv. Co., 650 P.2d
343, 351 (Alaska 1982). Second, Cleary contends that Hertz's
argument really is a challenge to 22 AAC 05.420, rather than the
FSA and should not be addressed in the context of a challenge to
(5) The Department acted arbitrarily and capriciously
in denying computers to Spring Creek inmates.
Hertz argues that the Department's denial of computers
to Spring Creek inmates is arbitrary and capricious. He asserts
that the computers are necessary tools for rehabilitation and for
access to the courts. Cleary points out that once again the
issue was not raised by the parties to the FSA and was not raised
by Hertz before the trial court. We decline to consider the
issue of computers because it was raised for the first time on
appeal. Williams, 650 P.2d at 351.
Furthermore, Cleary accurately notes that the right to
rehabilitative programs was addressed by Section VI of the FSA
and that the failure to provide for access to computers does not
impair the superior court's findings that the FSA was reasonable
and fair and in the best interests of class members.
(6) The FSA does not clearly define special occasions
during which inmates can receive Alaska Native
Hertz argues that administrators at Spring Creek have
limited "special occasions"for receipt of native foods to
potlatches and that, since the FSA has been in effect, the
administrators have disallowed Alaska Native foods from the
villages during Christmas. He challenges Section VI.I.1 of the
FSA which provides:
1. The Department shall make provision
for special religious, medical and vegetarian
diets. Alaska Native foods will be permitted
on special occasions such as potlatches and
other times as resources and appropriate
regulatory agencies permit.
Cleary correctly argues that Hertz cannot raise this
issue for the first time on appeal. Williams, 650 P.2d at 351.
Additionally, this grievance involves the interpretation and
application of the FSA by the administrators at Spring Creek and
therefore may be raised only after the exhaustion of
administrative remedies under Section VII.E. of the FSA.
The superior court's denial of Hertz's request to
intervene is AFFIRMED. The superior court did not err in holding
that the provisions of the FSA were reasonable, fair and in the
best interests of the class despite Hertz's numerous objections.
None of Hertz's objections to the FSA are meritorious and thus do
not invalidate the superior court's approval of the FSA.
1. We review the superior court's denial of Hertz's Alaska
Civil Rule 24 motion under an abuse of discretion standard.
State v. Weidner, 684 P.2d 103, 113 (Alaska 1984).
2. The superior court did not rule on Hertz's motion to
intervene. The approval of the FSA was effectively a denial of
the motion to intervene. See Alaska R. Civ. P. 77(k)(4).
Therefore, the denial of the motion to intervene as of right is
appealable as a final order. Commonwealth of Pennsylvania v.
Rizzo, 530 F.2d 501, 504 (3rd Cir. 1976), cert. denied 426 U.S.
921 (1976); In Re Benny, 791 F.2d 712, 720 (9th Cir. 1986). An
order denying permissive intervention is traditionally only
appealable if the denial was an abuse of discretion. However,
courts and commentators have found it anomalous to determine
jurisdiction over an appeal by examining the very issue raised in
the merits of the appeal. Id. Thus the Benny court observes
that the "emerging trend is to treat all denials of intervention
as final appealable orders."Id. (Emphasis in the original).
3. Courts have disallowed intervention by pro se plaintiffs
when their interests are represented adequately by the existing
class representative. See McNeil v. Guthrie, 945 F. 2d 1163,
1167 (10th Cir. 1991). Further, as a pro se plaintiff, Hertz may
not properly represent a class. "A basic requirement of all
class actions is that the named plaintiff can fairly and
adequately represent the class." Shaffery v. Winters, 72 F.R.D.
191, 193 (S.D.N.Y. 1976) (citing Fed. R. Civ. P. 23(a)(4)). In
disallowing a pro se litigant's representation of a class of
inmates in a New Jersey state prison, the Shaffery court stated
that "[o]ne of the most important considerations in this regard
goes to the qualifications and expertise of plaintiff's counsel .
. . it would be improper to permit Shaffery, a pro se litigant
who is not an attorney and who labors under the restrictions of
incarceration, to litigate as a class action a question as
significant as that raised by the complaint." 72 F.R.D. at 193.
4. Cleary asserts that any error in not allowing Hertz to
intervene was harmless because Hertz's comments, proposals and
objections filed with the superior court were considered in the
negotiations and the FSA approval process. See Alaska Christian
Bible Inst. v. State, 772 P.2d 1079, 1081 (Alaska 1989)(denial of
intervention held harmless error where the intervenor was allowed
to participate as an amicus curiae). As in Alaska Christian,
here there was no prejudice where Hertz's comments were
considered by the superior court and the parties.
5. This holding does not preclude Hertz from properly
raising this issue with the Division of Adult Corrections,
Department of Health and Social Services.
6. 22 AAC 05.420 provides that the tape recorder need not
be operating during deliberations of the disciplinary committee.
7. Hertz raised and this court rejected a challenge to 22
AAC 05.420 in Hertz v. Pugh, MO&J No. 585, S-4286.