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Hertz v. Dept. of Corrections (2/18/94), 869 P 2d 154
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
SIDNEY R. HERTZ, )
) Supreme Court No. S-5431
) Superior Court No.
Appellant, ) 3AN-92-7344 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT OF)
CORRECTIONS; RICHARD FRANKLIN,)
Director, Division of )
Institutions; LARRY KINCHELOE,)
Superintendent, Spring Creek ) [No. 4056 - February 18, 1994]
Correctional Center; and )
MICHAEL DALY, Compliance )
Officer, Spring Creek )
Correctional Center, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: Sidney R. Hertz, pro se,
Seward. Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. cole, Attorney General, Juneau,
for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, and Compton, Justices.
[Matthews, Justice, not participating.]
PER CURIAM.
RABINOWITZ, Justice, concurring in part,
dissenting in part.
Sydney Hertz, an inmate at the Spring Creek
Correctional Center, appeals the judgment of the superior court
dismissing his administrative appeal. Hertz alleged that the
Department of Corrections and other appellees were in non-
compliance with the Final Settlement Agreement (Agreement) in
Cleary v. Smith, 3AN-81-5274 Civil. Because the facts are
uncontroverted, we review de novo the superior court's
interpretation of the Agreement. Martech Constr. Co. v. Ogden
Envtl. Servs., 852 P.2d 1146, 1149 (Alaska 1993).
We agree with the superior court's conclusion that
Hertz did not comply with the procedures set forth in Section
IX.B of the Agreement to challenge Department of Corrections
action for non-compliance. Section IX.B.1 of the Agreement
states that the Cleary court shall retain jurisdiction for the
purpose of enforcement of the Agreement. Section VII.E.10 of the
Agreement allows a compliance challenge, after exhaustion of
administrative remedies, to be brought as "a direct action before
the court in this case." We interpret these provisions to
require that an inmate bring an action for non-compliance in the
Cleary case. Hertz did not comply with this requirement.
Furthermore, Section IX.B.2 of the Agreement provides
that an inmate must bring any action seeking enforcement by the
court through counsel for the plaintiff class, unless the court
grants leave to proceed pro se. Philip Volland, counsel for the
plaintiff class, declined to represent Hertz in this case. Thus,
to bring his compliance action, Hertz must obtain leave from the
superior court to proceed pro se. Hertz failed to comply with
the Agreement by not obtaining such leave. Based on Hertz's
failure to comply with the procedural requirements of the
Agreement, we affirm the dismissal of his administrative appeal.1
AFFIRMED.
RABINOWITZ, Justice, concurring in part, dissenting in
part.
I agree with the majority's holding that Hertz failed
to comply with the procedural requirements of the Cleary
Agreement. Nevertheless, I cannot join in the majority's
affirmance of the superior court's dismissal of Hertz's
administrative appeal. Considerations of fairness and concern
for conservation of judicial resources lead me to conclude that
Hertz's pro se action seeking enforcement of the Cleary Agreement
should have been transferred to the Cleary court for two
purposes: (a) a determination whether leave should be granted to
Hertz to proceed pro se; and (b) in the event such leave is
granted, adjudication of the merits of Hertz's challenges to the
Department of Corrections' actions for alleged non-compliance
with the Cleary Agreement.
IN THE SUPREME COURT OF THE STATE OF ALASKA
SIDNEY R. HERTZ, )
) Supreme Court No. S-5431
Appellant, )
) O R D E R
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF CORRECTIONS; RICHARD )
FRANKLIN, Director, Division )
of Institutions; LARRY )
KINCHELOE, Superintendent, )
Spring Creek Correctional )
Center; and MICHAEL DALY, )
Compliance Officer, Spring )
Creek Correctional Center, )
)
Appellees. )
______________________________)
Superior Court No. 3AN-92-7344 Civil
Before: Moore, Chief Justice, Rabinowitz, Burke,
and Compton, Justices. [Matthews, Justice, not
participating.]
IT IS ORDERED:
1. Memorandum Opinion and Judgment No. 0698, issued
on December 22, 1993, is WITHDRAWN.
2. Opinion No. 4056 is issued on this date in its
place.
Entered by direction of the Court at Anchorage, Alaska,
on February 18, 1994.
CLERK OF THE SUPREME COURT
/s/ Jan Hansen
__________________________
JAN HANSEN
_______________________________
1. The Department of Corrections also argues that Hertz
failed to exhaust his administrative remedies within the
Department by failing to file a copy of his appeal, and the
response of the Director of Institutions, with the Department's
Grievance and Compliance Administrator. Hertz counters that
Section VII.E.6 of the Agreement requires the Department, not the
inmate, to file the copy of the appeal and response. We agree
with Hertz's interpretation.
Section VII.E.6 of the Agreement states:
The regional director shall provide
the inmate with a written response to the
appeal within 15 working days of receipt with
a copy to the institutional grievance
coordinator. The response shall state the
affirmance or reversal of any decision by the
superintendent, and any corrective action to
be taken, and contain findings and
conclusions sufficient to permit further
review. A copy of the inmate's appeal, and
of the appeal response, shall be filed with
the Department's Grievance and Compliance
Administrator. An inmate who feels that a
grievance has not been handled consistent
with Department policy may seek review by the
Grievance and Compliance Administrator after
final disposition by the regional director.
(Emphasis added.) The parties agree that, after the 1991
reorganization within the Department of Corrections, all
references to "regional director"in the Agreement should now be
considered to read "director of institutions."
It is not clear from the disputed language who has the
burden of filing the appeal and response. The two sentences
prior to the disputed one discuss obligations of the director,
including the specific obligation to file a copy of the response
with the institutional (as opposed to department-wide) grievance
coordinator. Not until the sentence following the disputed
language does the Agreement discuss the inmate's right to appeal
to the Grievance and Compliance Administrator. Thus the copies
"shall be filed"with the Administrator regardless of whether the
inmate seeks further review. This context leads us to conclude
that the responsibility was on the director of institutions, and
therefore Hertz did comply with all of the Agreement's procedures
for administrative review within the Department of Corrections.
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