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, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JAMES E. BARBER, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF 

CORRECTIONS, 

Appellee. 

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BILLY JACK WIGLESWORTH, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF 

CORRECTIONS, 

Appellee. 

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) Supreme Court Nos. 

S-15645/15655/15836 

(Consolidated) 

Superior Court No. 3AN-81-05274 CI 

O P I N I O N 

No. 7159 – March 17, 2017 

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MATTHEW M. MOORE, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF 

CORRECTIONS, 

Appellee.1 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, John Suddock, Judge. 

Appearances: JamesE.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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court to enforce the terms of the 1990 Final Settlement Agreement and Order2 in the 

Cleary case,3 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 

pursuant to AS 09.19.200(c).6 The plaintiffs opposed that motion and argued that the 

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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of the APLRA.12 But she instead adopted the approach in Gilmore v. California13 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 

the Agreement.14 Judge Andrews noted that the Gilmore court “described the 

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). 

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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 

originals.19 Wiglesworth moved for a preliminary injunction and temporary restraining 

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. 

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that Judge Andrews’s 2001 Order misinterpreted Gilmore v. California. 

20 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). 

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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 

motion did not present the court with parallel facts to Hertz II. 

22 Additionally, Moore 

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 

administrative remedies.”27 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 

of issues which have been adjudicated in a previous appeal in the same case.’ ”28 

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 

marital separation agreement.30 In 2004 Ann Dunlap, James’s former wife, alleged that 

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 

therefore did not violate the terms of the agreement.32 We rejected James’s argument: 

although we acknowledged that “James may have had a claim that the superior court 

erred,” we concluded that “the time to appeal was in 1995.”33 We held that “[t]he relief 

James seeks now is barred by the law of the case,”34 and we observed that “[a]lthough 

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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fully litigated in the superior court and as to which no timely appeal has been made.”35 

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 csae 

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 

settlement] and not the [Cleary settlement] [itself].”40 After another hearing in 2001, 

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 

available under the consent decree.”41 Based on those concerns, Judge Andrews 

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 

connected transactions’ out of which the previous action arose.”43 We have “identified 

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 

to appeal or was in fact reviewed on appeal.’ ”44 In the context of the constitutionality 

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 AlaskaWildlifeAlliance v. State,74 P.3d201,206(Alaska2003) (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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court held two separate hearings on the issue.45 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 

(Alaska2010). We explained, “The [2001]superior court orderspecificallyrequired that 

all future claims for prospective reliefunder the [FinalSettlementAgreement]mustshow 

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 that order.” Id. at 668. 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)). 

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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 

failed to make sufficient findings to reverse the law of the case.50 Because the superior 

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 

efficiency.’ ”52 These principles are served in this case by requiring the parties to abide 

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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the superior court found that Moore was not entitled to represent the entire class,53 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. 

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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