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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Clark v. State, Dept. of Corrections (04/20/2007) sp-6117
Notice: This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RICHARD L. CLARK, | ) |
| ) Supreme Court No. S- 12135 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-11093 CI |
| ) | |
| STATE OF ALASKA, DEPT. | ) |
| OF CORRECTIONS, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6117 - April 20, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Phillip R. Volland, Judge.
Appearances: Richard Lance Clark, pro se,
Anchorage. John K. Bodick, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Richard Clark, an Alaska state prisoner, challenges his
transfer to Florence Correctional Center in Arizona on the
grounds that it violated his right to rehabilitation by denying
him visitation with his family and alcohol treatment. While
Clarks case was pending before this court, the court of appeals
ordered Clark to be resentenced on his underlying criminal
conviction. Because the department of corrections transferred
Clark back to Alaska pursuant to the court of appealss decision,
Clarks appeal has become moot. Accordingly, we dismiss the
appeal.
II. FACTS AND PROCEEDINGS
Richard Clark, a prisoner of the State of Alaska, is
currently serving a sixteen-year sentence with eight years
suspended, for assault and arson. Clark is scheduled for release
in February 2009. Clark began serving his sentence at Spring
Creek Correctional Center (Spring Creek) in Seward. In April
2004 the Department of Corrections considered transferring Clark
to an Arizona prison facility.1 The Spring Creek classification
committee informed Clark that he was being considered for
transfer to an out-of-state facility in order to alleviate
overcrowding and then conducted a classification hearing.2
Clark was present at the hearing. The committee
inquired into any visitation Clark received from family. Clark
informed the committee that while incarcerated he received visits
from family approximately every other month, and that he spoke to
his family over the telephone twice per week. He also stated
that these visits and phone calls were important to his
rehabilitation. Clark asserted that alcohol treatment was his
primary rehabilitative need. He informed the committee that he
was appealing his sentence, and that he had been previously
incarcerated for separate convictions in Ketchikan and Palmer.
Based on the foregoing, the committee determined that an out-of-
state transfer would not impede Clarks rehabilitation. The
committee recommended Clark for transfer to Florence Correctional
Center in Arizona.
The superintendent of Spring Creek approved Clarks
transfer. The classification committee then notified Clark.
Clark filed a department appeal of the transfer order. In his
appeal, Clark argued the following: (1) the Native Village
Council of Clarks Point recommended that Clark remain in Alaska
and eventually be paroled to Clarks Point for alcohol treatment;
(2) as an Alaska Eskimo he maintained a traditional lifestyle;
(3) his father was ill; (4) the pro se appeal of his sentence
would benefit from his presence in Alaska; (5) he was enrolled in
a computer class and had applied for a job at Spring Creek; (6)
the transfer affected Clarks visitation with family and his right
to rehabilitation; (7) he was not informed of the transfer until
after he had signed the notice of classification; and (8) the
judge who sentenced Clark had recommended Clark serve his
sentence in Alaska.
Deputy Commissioner of Corrections Donald Stolworthy
rejected Clarks appeal. Stolworthy determined that the transfer
would not substantially impair Clarks access to rehabilitation or
treatment, that Clark failed to show any rehabilitative effects
of any visitation he had received, and that Clarks prior criminal
history and previous incarceration indicated Clark did not have a
predominantly rural lifestyle. Clark then filed an
administrative appeal to the superior court. In October 2005
Clark was transferred to Florence Correctional Center in Arizona.
Shortly thereafter, the superior court issued an order
affirming the transfer. The court found that the classification
committee had addressed each of Clarks rehabilitative concerns.
The courts order noted that Clark presented no evidence that a
potential decrease in visitation would substantially impair his
rehabilitation: Clark would remain eligible for work and
educational rehabilitation programs in Arizona, Clarks wish to be
paroled to Clarks Point could be addressed from Arizona, and
Clark had failed to show that his native lifestyle somehow
precluded his transfer. Clark filed an appeal before this court.
While Clarks appeal was pending, the court of appeals
issued Memorandum and Opinion No. 5125 in October 2006. The
court of appeals ordered that Clark be resentenced on his
underlying criminal conviction. Pursuant to that decision, the
department transported Clark back to Alaska for resentencing.
The state then filed an emergency motion to dismiss Clarks appeal
and to vacate oral argument. We denied the states motion but
requested that the parties be prepared to discuss mootness
issues at oral argument. Oral argument was held on November 8,
2006.
Because we now conclude that Clarks appeal of his
transfer decision is moot, we do not decide the merits of his
appeal.
III. STANDARD OF REVIEW
We apply our independent judgment to issues of mootness
because as a matter of judicial policy, mootness is a question of
law.3
IV. DISCUSSION
A. Clarks Appeal of His 2004 Transfer Decision Is Moot.
We will not generally decide questions of law where the
facts have rendered the legal issues moot.4 A claim is moot
where a decision on the issue is no longer relevant to resolving
the litigation, or where it has lost its character as a present,
live controversy,5 that is, where a party bringing the action
would not be entitled to any relief even if he or she prevailed.6
The department contends that because Clark will be
resentenced and reclassified prior to any transfer back to
Arizona, his appeal should be dismissed. As noted by counsel for
the department in both its emergency motion to dismiss the appeal
and at oral argument, the 2004 classification decision
transferring Clark to Arizona has been vacated. Clark was
transferred back to Alaska in late October 2006. Following
resentencing, Clark may be classified and housed in Alaska or he
may be classified for transfer to Arizona under a new out-of-
state transfer determination. In either case, the 2004
administrative decision now before us on appeal would no longer
be the operative decision that causes Clark to be housed in
Arizona. Clarks appeal of his 2004 transfer decision is
therefore moot.
B. The Public Interest Exception Does Not Apply to Clarks
Appeal.
We may still review issues that are moot under the
public interest exception to the mootness doctrine.7 In
determining whether the public interest exception applies, we
consider: (1) whether the disputed issues are capable of
repetition, (2) whether application of the mootness doctrine will
repeatedly circumvent review of the issues, and (3) whether the
issues are of important public interest.8 These factors are not
strictly determinative in and of themselves and the determination
of whether to review a moot issue is left to this courts
discretion.9
Turning to the first of the three factors, it is clear
that the issues raised by Clark are plainly capable of
repetition. Numerous cases involving challenges to out-of-state
prison transfers have come before us in recent years.10 We
further recognize that there are a large number of Alaska
prisoners routinely housed in Arizona. These prisoners remain
separated by enormous geographic distance and economic barriers
from their families, community support networks, and loved ones.
Clarks claim of a violation of his right to rehabilitation
therefore is one that is frequently implicated.
The third factor is also satisfied, because the issues
Clark raises in his appeal are plainly of public importance. A
prisoners right to rehabilitation is found in the Alaska
Constitution,11 and is therefore within the public interest. The
department is required to consider any impact on a prisoners
right to rehabilitation when considering transfer to an out-of-
state facility.12 We have repeatedly noted the importance of
visitation within the broader right to rehabilitation, as well as
the impact of visitation on prisoners and to communities. In
Brandon we noted:
Visiting is the most direct link for the
inmate with the world left behind. Indeed,
visiting is indispensable to any realistic
program of rehabilitation. . . .
Prison visits have long been recognized as
critically important to inmates as well as
the communities to which the inmates will
ultimately return.[13]
We recognize the importance of visitation as one component of a
prisoners rehabilitation and its impact in assisting prisoners in
the rehabilitative process. Alaska prisoners, particularly those
from bush Alaska, face unique and extraordinary hardships in
maintaining family and community ties ties that are important to
facilitating prisoners rehabilitation.14
Analysis of the second factor, however, leads us to
conclude that this appeal is moot. Although the issues raised in
Clarks appeal are of public importance and are capable of
repetition, nothing in the application of the mootness doctrine
to Clarks case indicates that the issues he raises will
repeatedly circumvent review. Under our decision in Brandon v.
State, prisoners maintain a clear right to superior court review
of their transfer decisions where their right to rehabilitation
is impacted.15 Should the department conduct a new, independent
classification hearing, Clark maintains the right to appeal any
subsequent transfer decision.16 Similarly, other Alaska prisoners
who are classified for transfer to Arizona may contest their
transfer decisions. Thus, there is no reason to believe that the
issues raised in this case will repeatedly circumvent review.
V. CONCLUSION
Because Clarks 2004 classification decision has been
superceded by recent events, and Clark has been returned to
Alaska, we conclude that Clarks appeal is moot. Because Clark
retains the right to appeal any future transfer decision
implicating his constitutional right to rehabilitation, the
public interest exception to mootness does not apply. We
therefore DISMISS Clarks appeal as moot.
_______________________________
1 The state routinely houses prisoners in contract
facilities under a plan to reduce overcrowding of Alaska prisons.
See Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).
2 It is unclear from the record when Clark was notified
of the proposed transfer. Classification staff are required to
provide prisoners with at least 48 hours notice of a
classification hearing unless notice is waived by the prisoner.
There is no indication that Clark waived the notice requirement
in this case.
3 Akpik v. State Office of Mgmt. and Budget, 115 P.3d
532, 534 (Alaska 2005).
4 Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773, 776
(Alaska 2001) (quoting OCallighan v. State, 920 P.2d 1387, 1388
(Alaska 1996)).
5 Municipality of Anchorage v. Baxley, 946 P.2d 894, 899
(Alaska 1997).
6 Maynard v. State Farm Mut. Auto Ins. Co., 902 P.2d
1328, 1329 n.2 (Alaska 1995).
7 Taylor v. Gill St. Invs., 743 P.2d 345, 347 (Alaska
1987).
8 Id. (citing Hayes v. Charney, 693 P.2d 831, 834 (Alaska
1985)).
9 Hayes, 693 P.2d at 834.
10 See, e.g., Cleary v. Smith, 146 P.3d 997 (Alaska
2006); Carlson v. Renkes, 113 P.3d 638 (Alaska 2005); Brandon v.
State, Dept of Corrs., 938 P.2d 1029 (Alaska 1997).
11 Alaska Const. art. I, 12 (Criminal administration shall
be based on . . . the principle of reformation.).
12 AS 33.30.061(a) allows the commissioner to place a
prisoner in an out-of-state correctional facility. AS
33.30.061(b) allows the commissioner of the department to
designate a prisoner for transfer only upon a determination that
the rehabilitation or treatment needs of the prisoner will not be
substantially impaired. See also 22 Alaska Administrative Code
05.252(a) (prisoner may be transferred upon determination that
rehabilitation or treatment not substantially impaired).
13 938 P.2d at 1032 n.2 (quoting 2 Michael Mushlin, Rights
of Prisoners 12.00 (2d ed. 1993) and Kentucky Dept of Corrs. v.
Thompson, 490 U.S. 454, 468 (1989) (Marshall, J., dissenting)).
14 For those reasons, we are troubled by Clarks
contentions that FCC prison officials refused to accommodate a
visitation request made by Clarks sister following her arrival at
Florence Correctional Center in Arizona after traveling from
Dillingham, Alaska. Although we recognize the strain placed on
prison administrators and the unique security needs surrounding
visitation requests, the importance of facilitating family
visitation cannot be denied. Prison officials and administrators
must ensure that their operating policies and procedures and
prison visitation rules take into account the unique challenges
Alaska families regularly encounter when attempting to visit
family members who are incarcerated in Arizona.
15 Id. at 1033.
16 Requiring Clark to commence a new internal appeal
process once any subsequent transfer decision is issued does of
course delay consideration of the merits of Clarks general
claims. In effect, he could face a longer period of incarceration
in Arizona and increased costs associated with any filing fees
incurred by a second round of appellate review. While this delay
may be troubling, we expect timely department and judicial review
of any future claims by Clark negates any concern that the issues
will evade review.
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