Opposition Brief — Franklin v. Hiser

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No. 96-895 ©/] — Susreme Court, US a

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Supreme Court of the Hyited States

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OCTOBER TERM, 1996

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RICHARD H. FRANKLIN, et al.,

Petitioners,

—V.—

TIMOTHY WILLIAM HISER,

on his own behalf and on behalf

of all other persons similarly situated,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Steven L. Pevar

(Counsel of Record)

American Civil Liberties Union

Foundation

1888 Sherman Street, Suite 380

Denver, Colorado 80203

(303) 839-5752

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

QUESTION PRESENTED

Whether the Ninth Circuit correctly applied Alaska case

law on res judicata when it held, as the Alaska Supreme

Court has held, that state prisoners may litigate issues that

have not been adequately litigated previously.

LIST OF PARTIES

The petition does not include a list of the parties, and

the caption is incomplete. The caption correctly lists the de-

fendants/petitioners: prison officials Richard H. Franklin,

Frank Sauser, and Al Terrault. However, the caption fails

to indicate that the respondent, Timothy William Hiser, filed

this case on his own behalf and on behalf of all other Alas-

ka prisoners similarly situated.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........__._.. os aia SRE

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..........._._.. vat at ee

STATEMENT OF THECASE...........__._. l

REASONS FOR DENYING THE WRIT ......_... 5

| A. The Case Does Not Merit Review......... §

| B. The Decision Below Does Not

Conflict With Any Federal Court

ei IE Gi i erry 5

C. The Decision Below Is Eminently

NE erases sa & & wo ooo een 5

1. The As-Applied Claim Is Not

Barred By Cleary ....__... voce a

2. The Facial Challenge Is Not

Barred By Cleary . . Ap | 7

CONCLUSION .... : reas a 10

TABLE OF AUTHORITIES

Page

Cases

Board of Pardons v. Allen,

Cae Che Se Ee os Oe ves eC ae eee 4

City of Los Angeles v. Lyons,

O55 TEE WED os ooo s 6k on ee ee 4

Cleary v. Smith,

Case No. 3AN-81-5274 Civ.

(Alaska-Super. 3d Jud. Dist.) ........ 1, 6, 7, 8, 9, 10

Cooper v. Federal Reserve

Bank of Richmond,

467 U.S. 867 (1984) ......... RG ae es ‘<x?

Ferguson v. Department

of Corrections,

816 P.2d 134 (Alaska 1991)... .. a aeie a 5, 7, 8, 9

Hertz v. Cleary,

835 P.2d 438 (Alaska 1992)................. 2, 7,8

Jackinsky v. Jackinsky,

894 P.2d 650 (Alaska 1995)............ Oe

Lewis v. Casey,

io ee

116 S.Ct. 2174 (1996). ........... A ae

Migra v. Warren City School

Dist. Ba. of Educ.,

465 U.S. 75 (1984) ....... snes Pale eee os 5

United States Parole Commission

v. Geraghty,

445 U.S. 388 (1980) .. ES Mg Cee ae ee

Page

Rules

Fed.R.Civ.Proc. 23(b)(1)(2)

nN

Other Authorities

18 Wright, Miller & Cooper,

FEDERAL PRACTICE AND PROCEDURE

(1981 and 1995 Supps.)............ eet

il

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

As petitioners concede, the petition raises no constitu-

tional or statutory issues. Pet. at 4.

STATEMENT OF THE CASE

Petitioners’ statement of the case is incomplete. Several

critical facts are omitted, and some statements are erroneous.

1. Petitioners (defendants) claim that Cleary v. Smith,

Case No. 3AN-81-5274 Civ. (Alaska Super. 3d Jud. Dist.),

challenged “all aspects of the conditions under which in-

mates were held in Alaska’s prison facilities" Pet. at 5.

That is not correct. Hundreds of conditions (both systemic

and individual) were not challenged in Cleary. On the issue

of access to the courts alone, Cleary did not challenge nu-

merous conditions that have been the subject of dispute

within the Alaska prison system, such as defendants’ alleged

retaliation against law clerks, their refusal to provide the

means whereby non-English speaking inmates can obtain

meaningful access, and their refusal to provide sufficient

space for the storage of legal materials.

2. Another access issue not raised in Cleary -- and

especially important here -- is defendants’ practice of re-

fusing to photocopy documents needed by inmates for litiga-

tion purposes. Defendants concede in their petition that the

Cleary Final Settlement Agreement (FSA) did not address

this constitutional issue, Pet. at 5, but they neglect to

explain why. The fact is, during the Rule 23 "comment"

period on the proposed FSA, an inmate named Hertz filed a

motion to intervene in Cleary so that he could challenge that

policy. The State strenuously opposed his motion, advising

the Alaska Supreme Court on appeal that the constitutionali-

ty of its photocopying policy "was simply never an issue in

{Cleary]." Brief of Appellees in Hertz v. Cleary, 835 P.2d

438 (Alaska 1992), at 31. The Alaska Supreme Court

agreed, and affirmed the trial court’s decision to save this

issue for another day. The court held that "[t}he issue of

photocopying was not raised in [Cleary]." Hertz, 835 P.2d

at 443 '

3. Timothy Hiser cid not move to Alaska until 1991,

a year after the Cleary decree was finalized in 1990. He en-

tered the state’s penal system in 1992.

4. Beginning in 1992, as alleged in his amended com-

plaint, Mr. Hiser asked prison officials to photocopy certain

documents he needed to initiate a lawsuit. His requests

were denied. In accordance with the prison’s grievance

process, Mr. Hiser administratively appealed. However, the

superintendent of the prison, Al Terrault, denied Hiser’s ap-

peal, stating (incorrectly) that prison officials “are under no

obligation to photocopy anything ...." (A copy of

Terrault’s decision is attached to Hiser’s amended com-

plaint.) Hiser then sought relief in federal district court.

5. Hiser’s amended complaint presents both a facial

and an as-applied challenge. First, it alleges that the de-

fendants have a practice of denying to a class of prisoners

the right to photocopy necessary legal documents (the facial

challenge). Am. Compl. at 13.7 Second, it alleges that

' Thus, it is disingenuous for the State to now claim that Timothy Hiser

is seeking to “relitigate" the photocopying issue.

? Hiser filed this case as a class action pursuant to Rule 23(b)(1)(2), Fed.

R.Civ.Proc. Paragraph 4 of the amended complaint states that class cer-

tification "is sought only for purposes of declaratory and injunctive relief

and not as to damages." The district court dismissed Hiser’s complaint

prior to deciding the question of class certification.

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plaintiff Hiser needed photocopies for litigation purposes;

defendants turned down Hiser’s repeated requests to provide

them; and these refusals "caused plaintiff to suffer difficulty

and harm in pursuing his legal claims" (the as-applied chal-

lenge). /d. at 914. Attached to the amended complaint are

three examples of the defendants’ refusals.

6. Defendants also fail to discuss the evidence (or lack

of it) introduced in the trial court. The defendants had the

burden of proof on their motion for summary judgment.

Yet, they introduced only two facts regarding the photo-

copying policy. According to the affidavit of prison official

Judy Coleman, Pet.App. 20-22, the Alaska Department of

Corrections (ADOC): (1) has had the same photocopying

policy since 1983, and (2) the policy provides "for free

photocopying for legal materials for indigent inmates .. . in

connection with pending or proposed litigation." /d. at 21

(emphasis added.)

7. This evidence is plainly unrelated to Mr. Hiser’s as-

applied claim. Defendants introduced no evidence whatso-

ever to contradict Mr. Hiser’s claim that in 1992 and 1993

-- policy or no policy -- prison officials repeatedly and im-

properly denied Ais requests for photocopying, and that these

denials resulted in actual harm to Mr. Hiser.

8. The petition contends that Timothy Hiser has only

himself to blame for the denials of his photocopy requests.

According to petitioners, Mr. Hiser failed to provide "satis-

factory evidence" that these photocopies were actually

needed. Pet. at 7. That contention is categorically untrue,

which explains why defendants cite nothing in the record to

support it. In fact, all of Mr. Hiser’s requests stated that he

needed the photocopies for proposed litigation. His re-

quests, however, were instantly denied for the sole reason

that he had no case pending. The exhibits attached to the

amended complaint prove this.

9. Even with respect to the facial challenge, defen-

dants’ evidence is deficient. First "[n]o written memoriali-

zation of the policy was submitted." Hiser v. Franklin, 94

F.3d 1287, 1289 n.2 (9th Cir. 1996), Pet.App. at 5 n.2.

Second, based on the evidence submitted into the record by

Mr. Hiser, it is apparent that no such policy existed at Mr.

Hiser’s prison. As the documents attached to Mr. Hiser’s

amended complaint demonstrate, he made repeated requests

to photocopy documents for proposed litigation, and every

request was denied because he had no litigation pending.

See, e.g., Am. Compl. Exh. H (denying Mr. Hiser’s photo-

copy request “as you have no pending court case involved

with this subject.") Moreover, defendants introduced no

evidence proving that any of the named plaintiffs in Cleary

had standing to challenge the photocopying policy, even if it

did exist. Defendants’ failure to introduce such evidence

single-handedly defeats their claim that their photocopying

policy could have been litigated in that case. See Lewis v.

Casey, _ U.S. __, 116 S.Ct. 2174 (1996).

10. Lastly, defendants failed to advise the Court that

Mr. Hiser will complete his sentence, and be released, on

April 18, 1997.

* Mr. Hiser’s release will have some effect on the as-applied challenge,

and no effect on the facial challenge. The as-applied challenge seeks:

(1) individual damages, and (2) an injunction preventing defendants

from continuing to deny Mr. Hiser’s legitimate photocopying requests.

Mr. Hiser’s release will not moot his individual claim for damages. See

Board of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987). However, it

will moot his request for individual injunctive relief. See City of Los

Angeles v. Lyons, 461 U.S. 95 (1983). His release will not effect the fa-

cial claim. On remand, the class will be entitled to substitute other

named plaintiffs and to have the case certified as a class action relating

back in time to the date of filing, assuming that the plaintiffs otherwise

meet the requirements for class certification. See United States Parole

Commission v. Geraghty, 445 U.S. 388, 404-07 (1980).

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ARO ie SIERO. tere tae ae

REASONS FOR DENYING THE WRIT

A. The Case Does Not Merit Review

Nothing in the decision below warrants review. As de-

fendants admit, the petition raises no const*tutional or statu-

tory claims. Pet. at 4. On the contrary, the Ninth Circuit’s

decision merely applies Alaska law on res judicata to the

unique facts of this case.

B. The Decision Below Does Not Conflict

With Any Federal Court Decision

The decision below does not conflict with any federal

court decision, and petitioners do not claim otherwise. It

also does not conflict with any Alaska state court decision,

and petitioners do not claim otherwise. On the contrary, the

Alaska Supreme Court’s decision in Ferguson v. Department

of Corrections, 816 P.2d 134 (Alaska 1991), required the

Ninth Circuit to rule as it did.

C. The Decision Below Is Eminently

Correct

The district court granted defendants’ motion for sum-

mary judgment and dismissed on res judicata grounds both

the facial and the as-applied challenges to defendants’ pho-

tocopying policy. The Ninth Circuit, applying Alaska law,

reversed.

Petitioners note at the outset that the Ninth Circuit was

required to apply state law in determining whether res judi-

cata barred Mr. Hiser’s claims. Pet. at 9, citing Migra v.

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81

(1984). Petitioners then argue that the Ninth Circuit misap-

plied Alaska law. Significantly, however, petitioners do not

cite a single Alaska decision in support of their argument.

1. The As-Applied Claim Is Not

Barred By Cleary

Petitioners, defying logic, argue that the actions they

took in 1992 and 1993 (and are still taking) regarding Timo-

thy Hiser could have been litigated in a lawsuit that ended

in 1990. They do not explain how this feat is possible.

Petitioners’ argument flies in the face of Alaska law

(and reality). It is clear in Alaska that "/rJes judicata does

not act as a bar when the conduct giving rise to the later

suit post-dates the conclusion of the first suit. Restatement

(Second) of Judgments §24 cmt. f (1982)." Jackinsky v.

Jackinsky, 894 P.2d 650, 656 (Alaska 1995). This is the

universal rule. See 18 Wright, Miller & Cooper, FEDERAL

PRACTICE AND PROCEDURE §4455 (1995 Supp.)

Mr. Hiser’s as-applied claim seeks individual injunctive

relief and damages. Mr. Hiser seeks damages to redress in-

juries he has suffered since 1992, and he seeks injunctive re-

lief to prevent future violations of his constitutional rights.

As noted earlier, Mr. Hiser will be released from prison on

April 18, 1997. At that time, his request for individual in-

junctive relief will become moot, but not his claim for dam-

ages. See n.3, supra.

The Cleary case sought no damages but only class-wide

injunctive relief. Petitioners’ argument with respect to Mr.

Hiser’s damages claim is therefore misguided for two sepa-

rate reasons. First, the claim post-dates Cleary and thus

cannot be barred by it. Jackinsky v. Jackinsky, 894 P.2d

650. Second, Cleary cannot bar Hiser’s claim for monetary

relief given that Cleary sought only injunctive relief. It is

well established that an individual claim for damages is not

barred by a prior class action that sought only declaratory

and injunctive relief. See Wright, supra (1981 and 1995

Supps.); Cooper v. Federal Reserve Bank of Richmond, 467

U.S. 867 (1984).4

The only portion of Mr. Hiser’s as-applied claim that

Cleary could conceivably affect is the request for individual

injunctive relief. As explained below, if defendants’ photo-

copying policy had been litigated in Cleary, no request for

injunctive relief could be entertained by the federal courts.

Under those circumstances, Mr. Hiser (and the class) would

be relegated to pursuing the remedies provided by Cleary.

However, the photocopying policy was not litigated in

Cleary. See pp.1-2, supra. Thus, the Ninth Circuit was

correct in reversing the dismissal of the as-applied claim,

both with respect to damages and injunctive relief.

2. The Facial Challenge Is Not Barred

By Cleary

Mr. Hiser’s amended complaint challenges the facial

validity of defendants’ photocopying policy. This challenge

is made on Hiser’s own behalf and of behalf of all other

Alaska prisoners similarly situated. The Ninth Circuit cor-

rectly held that res judicata does not bar this claim. This

conclusion is mandated by Ferguson v. Dept. of Corrections,

816 P.2d 134, and Hertz v. Cleary, 835 P.2d 438.

The plaintiff in Ferguson was a present member of the

Cleary class, and thus could have sought to include his

claim in Cleary. Instead, he waited until after the FSA was

finalized to challenge the constitutionality of ADOC’s uri-

nalysis testing policy. The defendant prison officials -- the

same defendants here -- contended that Ferguson’s claim

was barred by the preclusive effect of Cleary. The Alaska

* As Cooper illustrates, a class action for injunctive relief does not bar a

subsequent suit for damages even by persons who were members of the

first suit. Obviously, if a present class member is still allowed to bring

a subsequent damages action, so is an absent member like Hiser.

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Supreme Court rejected this argument. Traditional notions

of finality, the court held, must be tempered in class-action

litigation in order to protect against due process violations:

Out of concern that it is unfair to preclude a

non-named class member from subsequent liti-

gation, many courts modify the traditional res

judicata tests when the initial litigation is a

class action .... Typically courts will only

preclude [a non-named] class member in subse-

quent litigation if the class representatives are

found to have made a competent attempt to

protect [that person’s] interests.

Ferguson, 816 P.2d at 138. Having set this standard, the

Ferguson court then examined whether the class representa-

tives in Cleary made a “competent attempt" to protect Fer-

guson’s interests. The court acknowledged that ADOC’s

drug testing policies "were evaluated on cross motions for

summary judgment" in Cleary. Ferguson, 816 P.2d at 138.

However, these policies "constituted a relatively insignificant

aspect of the litigation and negotiations" and no expert testi-

mony was adduced concerning them. /d. at 138-39. The

court therefore rejected the application of res judicata.

Applying the Ferguson test, the Ninth Circuit correctly

decided that Hiser’s facial challenge is not barred by Cleary.

Even if the marmed plaintiffs in Cleary had standing to chal-

lenge that policy -- and petitioners introduced no proof of it

in the district court -- the Alaska Supreme Court specifically

found in Hertz that defendants’ photocopying policy had not

been litigated in Cleary. Hertz, 835 P.2d at 440. (As noted

earlier, the photocopying issue could have been litigated but

che defendants refused to allow its joinder.) Therefore,

Cleary could not bar the subsequent litigation of this claim

under controlling Alaska law. Ferguson, 816 P.2d 134.

According to petitioners, the Ninth Circuit’s decision

prevents them from obtaining the benefit of the bargain they

reached in Cleary. In essence, petitioners claim that by

signing the "comprehensive" FSA they shielded themselves

from ¢il further lawsuits, even those involving unconstitu-

tional behavior of their staff that might occur in future years

and, even if, as the Ninth Circuit concluded here, the uncon-

stitutional behavior arose from a separate set of operative

facts.

There are two responses to this argument. In the first

place, it is the Alaska Supreme Court that limited Cleary’s

res judicata effect, not the Ninth Circuit. Second, petition-

ers’ argument has no support in Alaska law or the law of

any other jurisdiction. Petitioners cite no case that supports

such a notion because they cannot. Had defendants wanted

Cleary to bar a future facial challenge to the photocopying

policy, they should have supported Mr. Hertz’s effort to in-

clude that issue in the Cleary litigation. By opposing its

joinder, they preserved it for another day. That day has

arrived.”

Petitioners also claim that the Ninth Circuit’s decision

"divided Alaska’s prison system into two legally distinct

classes -- those incarcerated during the Cleary FSA negotia-

tion process and those who entered the system afterwards."

Pet. at 9. That statement is incorrect in two respects. Ad-

mittedly, two classes are created. (Two classes are created

in every res judicata application.) First, it was Ferguson

that created them, and not the Ninth Circuit. Second, the

two classes are differentiated by issue, not inmate. As Fer-

guson dictates, Cleary bars relitigation of all issues that

‘ Of course, as noted earlier, even if the photocopying policy had been

litigated in Cleary, the FSA could not bar Mr. Hiser’s suit in federal

court pursuing individual damages.

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were competently litigated in Cleary, but does not bar any

others, regardless of who brings them. Even present class

members, such as Mr. Ferguson, are not barred from litiga-

ting unlitigated claims. Mr. Hiser’s issues were not compe-

tently litigated in Cleary, and thus are not barred.

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Stephen L. Pevar

(Counsel of Record)

American Civil Liberties Union

Foundation

1888 Sherman Street, Suite 380

Denver, Colorado 80203

(303) 839-5752

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: January 27, 1997

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