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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barber v. State, Dept. of Corrections (3/17/2017) sp-7159
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES E. BARBER, )
) Supreme Court Nos.
Appellant, ) S-15645/15655/15836
) (Consolidated)
v. )
) Superior Court No. 3AN-81-05274 CI
STATE OF ALASKA,
)
DEPARTMENT OF
) O P I N I O N
CORRECTIONS, )
)
No. 7159 - March 17, 2017
Appellee. )
_______________________________ )
)
BILLY JACK WIGLESWORTH, )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF )
CORRECTIONS, )
)
Appellee. )
_______________________________ )
----------------------- Page 2-----------------------
MATTHEW M. MOORE, )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF )
CORRECTIONS, )
)
Appellee.1 )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: James E. Barber, pro se, Anchorage, Billy Jack
Wiglesworth, pro se, Wasilla, and Matthew M. Moore, pro
se, Palmer, Appellants. John K. Bodick, Assistant Attorney
General, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for Appellees.
Before: Stowers, Chief Justice, Maassen and Bolger,
Justices. [Fabe and Winfree, Justices, not participating.]
STOWERS, Chief Justice.
I. INTRODUCTION
Beginning in 2013 a number of pro se prisoners moved for the superior
1 Theappellants in these cases filed under the caption of the 1981class action
Cleary et al. v. Smith et al. "Because [they] [are] not authorized to represent the class,
we have re-named [these] case[s]." Hertz v. State, Dep't of Corr. (Hertz II), 230 P.3d
663, 663 n.1 (Alaska 2010) (internal cross-references omitted).
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2
court to enforce the terms of the 1990 Final Settlement Agreement and Order in the
3
Cleary case,
a class action by inmates regarding prison conditions. In 2014 Superior
Court Judge John Suddock dismissed the prisoners' motions, concluding that the Final
Settlement Agreement was unenforceable because it had been terminated in 2001 when
Superior Court Judge Elaine M. Andrews found that the requirements for termination
had been met. But Judge Andrews did not terminate the Final Settlement Agreement
because she determined that the Alaska Prison Litigation Reform Act was only
constitutional if it did not terminate the Final Settlement Agreement. Judge Andrews's
2001 Order became the law of the case when it was issued. Because Judge Suddock
failed to make required findings when reversing the law of the case, we reverse Judge
Suddock's Order and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. The Cleary Case
Smith v. Cleary describes the Cleary Final Settlement Agreement:
This case began in 1981 as a class action
brought against the state by Alaska prisoners challenging
prison conditions. The plaintiffs formed three subclasses:
pretrial detainees (subclass A), sentenced prisoners in state
owned or operated correctional centers (subclass B), and
prisoners held by the state in federal facilities (subclass C).
Although the state and subclass C settled in 1983, litigation
continued with the remaining subclasses until the parties
entered a comprehensive settlement, which the superior court
incorporated in a consent decree in 1990.
The settlement agreement applied to "all
inmates, with some exceptions, who are or will in the future
2 Also referred to as the consent decree.
3 Final Settlement Agreement and Order, Cleary v. Smith, No.
3AN-81- 05274 CI (Alaska Super., Sept. 21, 1990).
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beincarcerated incorrectional facilities owned or operated by
the state" and bound the Department of Corrections and "any
successor department, division, or agency of the state of
Alaska which is statutorily responsible for the administration
of the state's adult correctional facilities." It included
elaborate provisions for future operation of Alaska prisons,
enumerated rights of inmates, guaranteed the availability of
specific rehabilitative programs and services, required the
state to implement an inmate classification system, created
population guidelines, and established caps to eliminate
overcrowding. The agreement also established mechanisms
to monitor ongoing compliance, including a provision calling
for a designated superior court judge to have continuing
[ ]
jurisdiction over alleged violations. 4
The Final Settlement Agreement "ordinarily allows compliance challenges
to be prosecuted individually by prisoners who have exhausted all available
administrative remedies."5
B. Alaska Prison Litigation Reform Act And 2001 Superior Court Order
In 1999theAlaskaLegislatureenactedtheAlaskaPrisonLitigation Reform
Act (APLRA), AS 09.19.200, which established standards for terminating prospective
reliefunder the Final Settlement Agreement and any other litigationchallengingprisoner
conditions in Alaska. Alaska Statute 09.19.200(c) provides:
Prospective relief ordered in a civil action with respect to
correctional facility conditions, including prospective relief
ordered under a consent decree, regardless of whether that
civil action was filed or the relief ordered before or after
4 Smith v. Cleary , 24 P.3d 1245, 1246-47 (Alaska 2001).
5 Id. at 1251. Administrative remedies are set out in the Alaska
Administrative Code and the State of Alaska Department of Corrections Policies and
Procedures. See 22 Alaska Administrative Code (AAC) 05.185 (2016); State of Alaska,
D e p ' t o f Co r r . , P o l i c i e s & P r o c e d u r e s 8 0 8 . 0 3 ( 2 0 0 6 ) ,
http://www.correct.state.ak.us/corrections/pnp/pdf/808.03.pdf.
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August 30, 1999, shall be terminated upon the motion of the
defendant unless the court finds that there exists a current
violation of a state or federal right . . . .
In2000 theDepartment moved to terminatetheFinalSettlementAgreement
6 The plaintiffs opposed that motion and argued that the
pursuant to AS 09.19.200(c).
APLRA was unconstitutional.7 JudgeAndrews ruled that the APLRA was constitutional
provided that it only terminated the prospective effect of the Final Settlement Agreement
and not the Agreement itself.8 She concluded that prospective relief under the APLRA
is limited to remedy violations of state or federal law.9
In 2001 Judge Andrews held another hearing on the status of the Final
Settlement Agreement.10 The court-appointed compliance monitor reported that all
matters referred to himwere resolved in conformity with the Agreement and that judicial
oversight was no longer necessary; the court then terminated active judicial supervision
in the case.11
Judge Andrews also explained that the majority of federal courts had
terminated previouslyissued prisoner-rights consent decreesunder thefederalequivalent
6 Decision and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at 2
(Alaska Super., July 3, 2001).
7 Id. at 2-3.
8 Id. at 3.
9 Id.
10 Id.
11 Id.
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12 13
of the APLRA. But she instead adopted the approach in Gilmore v. California and
decided that the APLRA should be construed to leave the Final Settlement Agreement
intact while restricting the court's authority to order continuing prospective relief under
14 Judge Andrews noted that the Gilmore court "described the
the Agreement.
consideration of whether the termination of consent decrees violates the separation of
powers doctrine as a 'grave constitutional question whether Congress can command the
courts retroactively to terminate a final judgment.' "15 Judge Andrews agreed with
Gilmore that "it would pose a grave constitutional question if the Alaska Legislature was
attempting to require the court to terminate a final order and judgment rather than merely
terminate the relief available under the consent decree."16 She therefore avoided "the
more difficult question of constitutionality . . . by construing the APLRA narrowly to
terminate only prospective relief due parties under the consent decree but not the consent
decree itself."17 No party appealed Judge Andrews's decision, and that decision became
law of the case.
C. Current Challenges
1. James Barber
In October 2013 James Barber and four other inmates housed at Spring
Creek Correctional Center in Seward each filed 30 identical motions under the Cleary
12 Id. at 6.
13 220 F.3d 987 (9th Cir. 2000).
14 Decision and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at 6-8
(Alaska Super., July 3, 2001).
15 Id. at 7 (quoting Gilmore, 220 F.3d at 1000).
16 Id. at 8.
17 Id.
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heading alleging violations of the Final Settlement Agreement. In February 2014 the
Goose Creek Correctional Center in Wasilla began restricting prisoners from sending
mail to one another "except as allowed by the superintendent." In April 2014 after
Barber had been transferred to Goose Creek, he and nine other inmates filed motions
under the Cleary heading regarding the Department of Corrections' decision to prohibit
prisoner-to-prisoner mail communication. The inmates contended that theDepartment's
policy violated the Final Settlement Agreement.
2. Billy Jack Wiglesworth
Billy Jack Wiglesworth was already a prisoner at the Goose Creek
Correctional Center when it began prohibiting prisoner-to-prisoner mail. In March 2014
after exhausting his administrative remedies through the prison grievance system
Wiglesworth, along with three other inmates, filed a motion in the superior court.
Wiglesworth's motion alleged violations of the Final Settlement Agreement, the Alaska
Administrative Code, the Alaska Constitution, and the Department's procedures.
AlthoughWiglesworthcontendedthattheDepartment'saction violated his constitutional
right to free speech, he requested that the court in its discretion order prospective relief
for 18 months to give the parties an opportunity to separately litigate the free speech
issue.18
The Department opposed Wiglesworth's motion and argued that the
prisoners had failed to show that the restriction was a violation of his state or federal
18 See AS 09.19.200(e) ("[A] court may order prospective relief as provided
in a consent decree without [finding a violation of a state or federal right] provided the
prospective relief does not continue for a period of more than two years . . . ."); Hertz v.
State, Dep't of Corr. (Hertz II ), 230 P.3d 663, 670-71 (Alaska 2010) (noting that the
superior court may require the Department to abide by the Final Settlement Agreement
for up to two years without finding violation of a state or federal right but finding that
Hertz sought an injunction lasting longer than two years).
-7- 7159
----------------------- Page 8-----------------------
rights. The Department asserted that 22 AAC 05.520(a) provided it with the authority
to restrict prisoner mail where "the security of the facility requires limitation"; it claimed
that the restriction was required to combat an increase in gang activity in Alaska prisons.
In his reply Wiglesworth again suggested that the court could provide relief
for up to two years while the parties litigated the issue of prisoner free speech.
Wiglesworth noted the Department did not support its claim that gang activity had
increased or suggest that its previous practice of restricting mail on a case by case basis
was no longer sufficient. He argued that if the Department was correct in asserting that
new concerns about increasing gang violence prompted the change in policy, the
Departmentshould havesought modificationoftheFinalSettlementAgreementpursuant
to Alaska Civil Rule 60(b).
In April 2014 Goose Creek instituted a new rule that inmates would be able
to receive black and white photocopies of all incoming letters and would not receive the
19 Wiglesworth moved for a preliminary injunction and temporary restraining
originals.
order pending the outcome of the administrative process. The Department opposed the
motion and argued that Wiglesworth failed to show that its practice violated state or
federal law, that security concerns justified the new procedure, and that the new
procedure did not violate the Final Settlement Agreement.
3. 2014 Superior Court Order
In July 2014 Judge Suddock concluded that the superior court was no
longer authorized to enforce the Final Settlement Agreement. Judge Suddock explained
19 The originals of greeting cards would be stored in the inmate's property
box, and photographs that did not test positive for drugs would still be delivered.
Wiglesworth claims that neither the copying nor storage of mail was always done in
practice.
-8- 7159
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20
that Judge Andrews's 2001 Order misinterpreted Gilmore v. California. Judge
Suddock noted that under the APLRA the State as a moving party was entitled to
termination of remedies as to the Final Settlement Agreement's provisions absent
allegations of current and ongoing violations of state or federal rights. Because Judge
Andrews did not find any constitutional rights when she issued her order in 2001, Judge
Suddock concluded the Department had met the APLRA's requirements for termination
of the Final Settlement Agreement.
Based on the fact that the Department had satisfied the requirements for
termination of the Final Settlement Agreement in 2001, Judge Suddock determined that
the Agreement was in fact terminated by Judge Andrews's 2001 Order, although the
superior court failed to recognize that at the time.
Judge Suddock then turned to the prisoners' argument that the court is
authorized to enforce the Agreement's provisions under a lesser standard for a period of
two years. He declined to invoke the court's authority, saying that "the court would
invoke its special two-year injunctive power only under the clearest of circumstances,
which it [found] [were] not present" and that "changed conditions readily support[ed]
[the Department's] safety-based policy decision to abandon inmates' Cleary rights to
receive any publications from personal sources."
Finally, JudgeSuddock describedthestatus ofprisoners'rightstochallenge
prison conditions after termination:
If any inmate desires to file a future claim alleging a state or
federal rights violation not grounded in the terms of the
consent decree, which extends to the entire class and seeking
a narrowly-tailored, least-intrusive remedy that does not
unduly interfere with the appropriate operation of the
criminal justice system, that course of action remains open,
20
220 F.3d 987 (9th Cir. 2000).
-9- 7159
----------------------- Page 10-----------------------
following exhaustion of administrative remedies.
The court then dismissed the inmates' claims.
Barber and Wiglesworth appeal.
4. Matthew Moore
Matthew Moore is a pre-trial detainee being held by the Department at the
Mat-Su Pretrial Facility in Palmer who was previously held at the Goose Creek
Correctional Center. While at Goose Creek, Moore was housed in the segregation unit.
Goose Creek enacted a rule that denied prisoners access to showers, recreation, phone
calls, and the law library if they failed to comply with Goose Creek's cell inspection
policies. In September 2014 Moore was denied access to showers, recreation, and the
law library for non-compliance with the inspection policy. Moore asserts that the
Department imposed that discipline without providing a hearing or any other procedure
for contesting the determination.
Moore complained to prison staff about the policy, but the staff did not
address his complaints. Moore then filed a formal grievance saying that the policy
violated the Department's Policies and Procedures and sections of the Alaska
Administrative Code, but Goose Creek denied his grievance. On December 9, 2014,
Moore filed a level 3 grievance appeal with the Office of the Commissioner. On
January 26, 2015, the Office of the Commissioner sent Moore a letter acknowledging the
Department'sPolicies and saying the Goose Creek handbook would beupdatedto reflect
that prisoners would lose only their personal phone time for failing to pass the daily
inspection and would not lose their rights to showers, daily recreation, or legal phone
calls. Moore claims that this response was untimely under the applicable Department
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policy.21
On January 9, 2015, before the Office of the Commissioner had responded,
Moore filed a motion under the Cleary heading to enforce the Final Settlement
Agreement. Moore's Motion to Enforce and for Declaratory Relief alleged violations
affecting prisoners housed at Goose Creek. Specifically, Moore alleged that prisoners
were being punished in violation of the Agreement, the Alaska Administrative Code, the
Department's Policies and Procedures, and state and federal due process. Moore argued
that "if a prisoner is citing the [Final Settlement Agreement] or Cleary litigation and is
claiming violations of constitutional rights, [which] are still [enforceable] under the
APLRA, then the grievance is part of the open and active Cleary litigation." He also
contended that he exhausted his administrative remedies "[b]ecause the grievance is the
administrative remedy." Finally, he contended that "this declaratory judgment can be
narrowly fashioned so as to not improperly thrust the Judiciary into the Executive
Branch's day to day operations of the prisons."
5. 2015 Superior Court Order
On January 16, 2015, Superior Court Judge Suddock rejected Moore's
motion. Judge Suddock concluded that Moore was bringing a disciplinary appeal, noted
that Moore failed to indicate that he sought to represent the Cleary class, and cited Hertz
II to say this court had on "parallel facts" re-captioned a case filed under the Cleary
heading in the prisoner's own name. Judge Suddock suggested that Moore re-file his
case as a stand-alone administrative appeal captioned under his own name and said that
21 See State of Alaska, Dep't of Corr., Policies and Procedures
808.03(VII)(A)(2)(j) (2006) ("The Standards Administrator shall respond in writing
directly to the prisoner within 20 working days. This decision is the final administrative
action by the Department on the grievance.").
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"[t]he court will take no further action regarding his filing within the Cleary case."
Moore moved for reconsideration. He argued that he was not bringing a
prisoner disciplinary appeal, that he had asked to represent the Cleary class by implicit
statement, that he had the right to bring the enforcement action pro se, and that his
22 Additionally, Moore
motion did not present the court with parallel facts to Hertz II .
contended that the superior court lacked statutory jurisdiction to review Department
grievances through the administrative appeal process, meaning that he would be left
without any remedy.
JudgeSuddockdeniedMoore'smotion for reconsideration. JudgeSuddock
conceded that he had mistakenly ordered Moore to file a free-standing administrative
appeal, and he instead directed Moore to file an action for declaratory and injunctive
relief under his own name. Judge Suddock asserted that Moore would not be prejudiced
by proceeding consistently with Hertz II.
Moore appeals. For purposes of this decision, we consolidate the three
appeals.23
III. STANDARD OF REVIEW
Principles of contract interpretation govern the construction and
enforcement of the Cleary Final Settlement Agreement.24 "The settlement agreement's
scope and effect raise questions of contract law that we review de novo."25 "In the
22 In Hertz II a pro se prisoner moved the court to require the Department of
Corrections to pay prisoners money upon being released from prison as provided for in
the Cleary settlement. Hertz II , 230 P.3d at 664.
23 See Alaska R. App. P. 204(i).
24 See Hertz II, 230 P.3d at 669.
25 Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).
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absence of factual disputes, we review questions of contract formation and interpretation
de novo. . . . If we agree, on de novo review, that a valid settlement agreement exists,
the superior court has no discretion to decline to enforce that agreement." 26
IV. DISCUSSION
The Final Settlement Agreement "ordinarily allows compliance challenges
to be prosecuted individually by prisoners who have exhausted all available
27
administrative remedies." Those prisoners' motions, although filed under one case
heading, are similar to separate actions becauseeach motion involves different prisoners,
correctional facilities, and facts. The superior court orders adjudicating those claims are
final judgments subject to appeal. But those motions are not new actions and are instead
motions within an existing case, meaning that rulings on Cleary motions fall within the
law of the case doctrine. We conclude that Judge Andrews's 2001 Order is the law of
the case, and that overruling Judge Andrews's 2001 Order required Judge Suddock to
make findings in 2014 that he did not make. We therefore reverse Judge Suddock's
2014 Order.
"The law of the case doctrine, which is 'grounded in the principle of stare
decisis' and 'akin to the doctrine of res judicata,' generally 'prohibits the reconsideration
28
of issues which have been adjudicated in a previous appeal in the same case.' "
Although it is true that "[a] trial judge who succeeds a prior trial judge in a case while
26 Chilkoot Lumber Co. v. Rainbow Glacier Seafoods, Inc. , 252 P.3d 1011,
1014-15 (Alaska 2011) (footnotes omitted) (citations omitted).
27 Smith, 24 P.3d at 1251.
28 Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009) (first quoting Alaska R.R.
Corp. v. Native Vill. of Eklutna, 142 P.3d 1192, 1201 (Alaska 2006); then quoting State,
Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 n.52 (Alaska 2003);
and then quoting Carlson, 65 P.3d at 859 n.52).
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the case is still in the trial court may generally reconsider a decision made by the prior
judge without violating the law of the case doctrine[,] . . . that freedom is not available
where . . . the prior judge's decision has been affirmed on appeal." 29
But the law of the case doctrine is broader than just those issues decided on
appeal: in the context of the Cleary Final Settlement Agreement, the law of the case
doctrine is applicable to issues that were fully litigated resulting in a final order which
was not timely appealed. In Dunlap v. Dunlap, James Dunlap did not appeal the superior
court's 1995 ruling that a certain retirement buyout was considered income under a
30 In 2004 Ann Dunlap, James's former wife, alleged that
marital separation agreement.
James failed to satisfy one of the conditions of the separation agreement.31 James argued
that the superior court incorrectly classified his retirement buyout as income, and he
32 We rejected James's argument:
therefore did not violate the terms of the agreement.
although we acknowledged that "James may have had a claim that the superior court
33 We held that "[t]he relief
erred," we concluded that "the time to appeal was in 1995."
34 and we observed that "[a]lthough
James seeks now is barred by the law of the case,"
our doctrine of law of the case generally refers to issues that have previously been
reviewed at the appellate level, the doctrine is equally applicable to issues that have been
29 Id . at 1017 (citations omitted).
30 131 P.3d 471, 474-75 (Alaska 2006).
31 Id . at 474.
32 Id . at 475.
33 Id .
34 Id .
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35
fully litigated in the superior court and as to which no timely appeal has been made."
Thus a final judgment that could have been appealed - but was not - becomes law of
the case. And as we stated in Dunlap, "issues previously adjudicated can only be
reconsidered where there exist 'exceptional circumstances' presenting 'a clear error
constituting a manifest injustice.' "36 In Smith v. Cleary we applied a law of the case
analysis to a superior court order in Cleary litigation.37
In2000theDepartment moved to terminatetheFinal SettlementAgreement
pursuant to the APLRA.38 The Cleary class opposed the motion arguing that the APLRA
was unconstitutional.39 Judge Andrews issued a decision declaring the APLRA
constitutional, but she determined that the APLRA only "withstands constitutional
scrutiny provided that the APLRA only terminates the prospective effect of the [Cleary
40 After another hearing in 2001,
settlement] and not the [Cleary settlement] [itself]."
35 Id . at 475-76 (emphasis in original) (citing Hermosillo v. Hermosillo , 797
P.2d 1206, 1208 (Alaska 1990) (presentation, in 1989, of motion nearly identical to
motion denied in 1988 constituted untimely appeal)).
36 Id . at 475 (quoting State, Commercial Fisheries Entry Comm'n v. Carlson,
65 P.3d 851, 859 (Alaska 2003)).
37 24 P.3d 1245, 1248-49 (Alaska 2001) (ruling that a 1986 superior court
order only applied to Subclass C and therefore was not the law of the case with respect
to Subclasses A and B).
38 Decision and Order, Cleary v. Smith, No. 3AN-81-05274 CI, at 2
(Alaska Super., July 3, 2001). The APLRA terminated the prospective relief that the
superior court could award to prisoners who brought claims under the Final Settlement
Agreement, and it set out the requirements the Department must satisfy before it may
move to terminate the Final Settlement Agreement. AS 09.19.200(c)-(d).
39 Decision and Order, at 2-3.
40 Id. at 3.
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Judge Andrews issued a decision reaffirming her prior determination that "it would pose
a grave constitutional question if the Alaska Legislature was attempting to require the
court to terminate a final order and judgment rather than merely terminate the relief
41 Based on those concerns, Judge Andrews
available under the consent decree."
concluded that the APLRA was constitutional only if it left the Final Settlement
Agreement intact while restricting the court's authority to order continuing prospective
relief under the Agreement; she thus avoided "the more difficult question of
constitutionality . . . by construing the APLRA narrowly to terminate only prospective
relief due parties under the consent decree but not the consent decree itself."42
Judge Andrews's 2001 Order was a final judgment. "A final judgment
extinguishes all claims 'with respect to all or any part of the transaction, or series of
43 We have "identified
connected transactions' out of which the previous action arose."
several indicia that a prior judgment was final: 'that the parties were fully heard, that the
court supported its decision with a reasoned opinion, [and] that the decision was subject
44 In the context of the constitutionality
to appeal or was in fact reviewed on appeal.' "
of the APLRA and the legal status of the Final Settlement Agreement following the
enactment of the APLRA, the parties were fully heard: the Department filed a motion
requesting that the superior court terminate the 1990 Final Settlement Agreement and
one of the 1983 consent decrees, the plaintiffs opposed that motion, and the superior
41 Id . at 8.
42 Id .
43 Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995) (quoting Tolstrup
v. Miller, 726 P.2d 1304, 1306 (Alaska 1986)).
44 Alaska Wildlife Alliance v. State, 74 P.3d 201, 206 (Alaska 2003) (alteration
in original) (quoting Usibelli Coal Mine, Inc. v. State, Dep't of Nat. Res., 921 P.2d 1134,
1142 (Alaska 1996)).
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----------------------- Page 17-----------------------
45
court held two separate hearings on the issue. The court also supported its decision
with a reasoned opinion: Judge Andrews issued a 31-page Decision and Order in 2001
that carefully considered the APLRA's constitutionality and prisoners' continuing rights
under the Final Settlement Agreement in light of the APLRA. 46
Both the Department and the Cleary class could have appealed Judge
Andrews's order, but they did not.47 Following the Order, the Department and Cleary
class counsel proceeded as though Judge Andrews's order must be given effect; so did
this court.48 Because Judge Andrews's 2001 Order was a final judgment that could have
been but was not appealed, it became the law of the case and was not subject to
reconsideration absent a determination that " 'exceptional circumstances' present[ed] 'a
clear error constituting a manifest injustice.' "49
In July 2014 Judge Suddock dismissed the prisoners' motions based on his
conclusion that Judge Andrews's 2001 Order had actually terminated the Final
Settlement Agreement. JudgeSuddock concluded, "Theprovisions oftheconsentdecree
45 Decision and Order, at 2-3.
46 Id . at 1-31.
47 See Dunlap v. Dunlap, 131 P.3d 471, 475 (Alaska 2006) (quoting State,
Commercial Fisheries Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003)).
48 In Hertz II Hertz challenged the denial of "gate money" upon his release,
for which the Final Settlement Agreement provided. Hertz II , 230 P.3d 663, 665-66
(Alaska 2010). We explained, "The [2001] superior court order specifically required that
all future claims for prospective relief under the [Final Settlement Agreement] must show
a current violation of a state or federal right, as required by the APLRA. The Cleary
class, of which Hertz was a member, did not appeal t hat order." Id. at 6 68. Our past
reliance on the 2001 Order provides additional support for our holding today.
49 Dunlap v. Dunlap, 131 P.3d 471, 475 (Alaska 2006) (quoting State,
Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003)).
-17- 7159
----------------------- Page 18-----------------------
that the inmates now seek to enforce are in fact unenforceable by the court, because they
were terminated by Judge Andrews in her 2001 order." But Judge Suddock overlooked
the constitutional concerns Judge Andrews had noted in her order: the Agreement was
not terminated by Judge Andrews's 2001 Order because Judge Andrews determined that
terminating the Agreement itself would present grave constitutional concerns. Judge
Suddock also failed to address the preclusive effect of Judge Andrews's Order, and he
50 Because the superior
failed to make sufficient findings to reverse the law of the case.
court did not make sufficient findings to reverse the law of the case, we reverse Judge
Suddock's 2014 Order and reinstate the rights of prisoners as they have existed since
Judge Andrews's 2001 Order: prisoners may bring motions to enforce the Final
Settlement Agreement provided that they exhaust their administrative remedies, they
allege violations of the Agreement and of a state or federal right, the violations affect the
entire class, the relief requested utilizes the least intrusive means, and the court considers
the adverse effects on public safety and the criminal justice system.51
50 Moreover, it does not appear that the Department argued before Judge
Suddock that Judge Andrews's 2001 Order terminated the Final Settlement Agreement
or that exceptional circumstances required revisiting Judge Andrews's Order. And the
Department appeared to treat the Cleary settlement as good authority in its briefs before
the superior court. In its Opposition to Wiglesworth's Motion for Enforcement of
Consent Decree, the Department argued that "Wiglesworth's motion must be denied
because he has failed to prove that this restriction . . . constitutes the violation of a state
or federal right as required by AS 09.10.200(a)."
51 See AS 09.19.200(a); Decision and Order, Cleary v. Smith, No.
3AN-81-05274 CI, at 1-8 (Alaska Super., July 3, 2001). We note that the Department
may seek to revisit Judge Andrews's Order by filing a motion in the superior court to do
so. We do not decide what standard the superior court must apply in that situation,
should it arise, but we suggest two possibilities. First, the Department could move for
modification of or relief from the Final Settlement Agreement and Order under Section
IX(B) of the agreement. This section provides that "an application to the court to modify
(continued...)
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Our conclusion today is supported by the policies underlying the law of the
case doctrine. As we noted in Beal v. Beal , "[t]he law of the case doctrine is 'a doctrine
of economy and of obedience to the judicial hierarchy.' The strong policy reasons
behind it include '(1) avoidance of indefinite litigations; (2) consistency of results in
[the] same litigation; (3) essential fairness between the parties; and (4) judicial
52 These principles are served in this case by requiring the parties to abide
efficiency.' "
by Judge Andrews's 2001 Order. Without applying the law of the case here, there is
nothing to stop subsequent superior courts from reinterpreting the APLRA and creating
further uncertainty surrounding the Cleary litigation. And although we are aware that
this litigation has continued for many years and that ending the Cleary litigation may be
a worthwhile goal, consistency and fairness require that the Department allege and prove
sufficient facts and the superior court make sufficient findings before reversing Judge
Andrews's 2001 Order and terminating the Final Settlement Agreement.
Because we reinstate prisoners' rights to bring motions under the Cleary
heading, the superior court on remand must determine whether Barber's,Wiglesworth's,
and Moore's motions satisfy the requirements of the APLRA. We note that, although
51(...continued)
or vacate shall be governed by the principles of Civil Rule 60(b)(5) and (6)." Second,
the Department could move for reconsideration of Judge Andrews's 2001 order.
Because this order is the law of the case, the Department would have to show that
" 'exceptional circumstances' present[ed] 'a clear error constituting a manifest
injustice.' " Dunlap, 131 P.3d at 475 (quoting Carlson, 65 P.3d at 859).
52 209 P.3d 1012, 1017 (Alaska 2009) (second alteration in original) (first
quoting Dieringer v. Martin, 187 P.3d 468, 473-74 (Alaska 2008); then quoting
Petrolane Inc. v. Robles, 154 P.3d 1014, 1026 (Alaska 2007)).
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53
the superior court found that Moore was not entitled to represent the entire class, there
is no evidence that he sought to represent the entire class. Moore filed a motion on his
own behalf, and he only indicated that he sought to represent the Cleary class in his
motion for reconsideration after Judge Suddock denied his initial motion for failing to
indicate that he sought to represent the Cleary class.
V. CONCLUSION
WeREVERSEthesuperiorcourt's order dismissing theprisoners' motions
and REMAND for further proceedings.
53 See Hertz v. Cleary, 835 P.2d 438, 442 n.3 (Alaska 1992) ("[A]s a pro se
plaintiff, Hertz may not properly represent a class.").
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