Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dan A. Hensley, Judge.
Loren J. Larson, Jr pro se, Florence, Arizona. Marilyn J. Kamm, Assistant Attorney General, and David W. Márquez, Attorney General, Juneau for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.MEMORANDUM OPINION AND JUDGMENT
Loren Larson was incarcerated at Spring Creek Correctional Center in Seward before the Alaska Department of Corrections (DOC) transferred him to a prison in Arizona. While he was at Spring Creek, several correctional officers warned Larson that if there was incidental physical contact between Larson and his young children when his family visited
him, the officers would terminate the visit. Claiming that the contact rules were arbitrary and unevenly enforced, Larson sued to obtain an injunction that would permit contact between an inmate and the inmate's young children during visits. Larson's suit was dismissed on summary judgment. He now argues that this application of Spring Creek's visitation rules was arbitrary and unreasonable and unconstitutionally infringed on his right to rehabilitation which, he argues, includes a right to visitation. But because Larson is no longer incarcerated at Spring Creek, there is no indication that he will return to Spring Creek in the foreseeable future, and his youngest child is no longer incapable of avoiding impermissible contact, the issues he raises are moot. We therefore dismiss his appeal.
II. FACTS AND PROCEEDINGS
While Loren Larson was a prisoner at the Alaska Department of Corrections' Spring Creek Correctional Center in Seward, his wife and children often drove from Fairbanks to visit him. In 2002, when the events giving rise to this appeal occurred, Larson's children were ages five, seven, and ten.
Spring Creek's "Visiting Rules" restricted the amount of physical contact permitted between prisoners and visitors. The rules stated: "Physical contact will be limited to a brief kiss and embrace at the beginning and conclusion of the visit with all visitors, to include children, to comply with D. O. C. Policy and Procedure. Body contact is NOT Permitted to include holding hands. " The rules also stated that "all chairs must be spaced apart and may not be moved from their position. "
Larson claimed that beginning in 2002 "some of the correctional officers have interpreted and enforced the visiting rules" to require termination of a visit if there was any physical contact between Larson and his children, "even just a touch. " At oral argument before us, Larson indicated that this interpretation of the rules was held by only some of the individual correctional officers at Spring Creek.
Larson sued Samuel Edwards, then Acting Director for DOC's Division of Institutions. Larson sought an injunction permitting physical contact between parents and
children during contact visits. He argued that ending a visit for incidental contact is an unreasonable restriction on his constitutional right to rehabilitation, because young children cannot understand such rules and this makes visits with children difficult. He also argued that Spring Creek's rules, as enforced, unreasonably departed from DOC's governing "Policy and Procedure" with respect to contact visits. DOC Policy 810. 02 states that "small children may sit with a relative prisoner at the discretion of the supervising staff member. "
The superior court granted summary judgment for Edwards, declaring that there was no constitutional right to contact visitation, and that DOC's interpretation of the visiting rules was "reasonable and not arbitrary" because "the purpose of the rule is to limit introduction of contraband. "
DOC has since transferred Larson to a private prison in Arizona.
A. Standard of Review
In determining whether an issue is moot we apply our independent judgment because mootness is a question of law as well as a matter of judicial policy.
B. Larson's Transfer Moots His Claims.
Larson contends that the superior court erred in ruling that the right to visitation does not entail contact visits, and erred in granting summary judgment without evidence that the prison rules served a valid penological purpose. He requests that we recognize contact visitation as a component of the
constitutional right to rehabilitation.
We will only reach the merits of a case if there is a live controversy. A case is moot if the plaintiff would not be entitled to relief even if the suit were successful. Edwards argues that Larson's claims are moot because he was transferred to a different prison, and Spring Creek's visiting rules no longer affect Larson.
Edwards is correct. Even if we were to decide that Spring Creek's rules or that the actions of individual corrections officers had violated Larson's rights, Spring Creek's rules no longer affect Larson's visitation. The only relief Larson seeks in this appeal is entry of an order compelling Spring Creek "to allow for innocent contact to occur between a prisoner and his infant, toddler or prepubescent children. " Because the specific relief he seeks would no longer benefit Larson, his appeal is moot.
In his reply brief, Larson does not deny that his complaint is now moot. He instead asks us to order that he be transferred back to Spring Creek. There is no reason to order a prisoner's transfer simply to permit him to continue litigation. When circumstances independent of the lawsuit have the effect of mooting the dispute, a litigant has no right to have us artificially recreate circumstances that would give rise to an actual case or controversy just so his appeal can move forward.
Circumstances might be different if there were evidence that DOC transferred Larson in a deliberate attempt to moot his claim and to prevent judicial review of DOC actions. But there is no evidence DOC transferred Larson to avoid judicial review. On the contrary, because Larson's sentence exceeds one hundred years, he was a logical candidate for transfer out of state.
We have the discretion to invoke the public policy exception for the purpose of reviewing a moot question. "Where the matter is one of grave public concern and is recurrent but is capable of evading review, we have undertaken review even though the question may be technically moot. " We use a three-part test to decide whether to apply the public interest exception: "1) whether the disputed issues are capable of repetition, 2) whether the mootness doctrine, if applied, may repeatedly circumvent review of the issues and, 3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine. "
Are the issues capable of repetition? There is a theoretical possibility Larson could be transferred back to Spring Creek, but we have declined to apply the public interest exception if the factual circumstances "were unlikely to repeat themselves. " It seems unlikely the events giving rise to this case will be repeated. First, Larson has been transferred to a facility in another state, and there is no indication his attempts to be transferred back to Alaska are likely to succeed. Even if he is returned to Alaska, we are unwilling to speculate that he will again be placed at Spring Creek. Second, Larson's youngest child is now nine years old. As Larson argues, it may be hard to explain to a young child why she cannot touch her father, even inadvertently. But Larson's youngest child is now old enough that this is no longer a problem. Given these circumstances, it seems unlikely the disputed issues will recur.
Potentially relevant to the possibility of repetition is the likelihood other prisoners might be adversely affected by the application of Spring Creek's visiting rules and the actions of individual DOC employees. But the record does not demonstrate that Spring Creek will uniformly or even often apply the rules to others in an objectionable way. Given uncertainties about whether the rules are uniformly or frequently administered in the way Larson claims, we are unconvinced that the possibility of repetition satisfies the first factor.
Will applying the mootness doctrine repeatedly prevent these issues from being reviewed now and in the future? Larson has shown by three other lawsuits that he can zealously assert his legal rights. Even if the
circumstances were to recur, we can safely assume that Larson will promptly reassert his rights and will be able to obtain review at that time.
Larson also asserts that Spring Creek's visiting rules affect other prisoners who are still imprisoned there, but Larson, as a pro se litigant, is in no position to assert the rights of third parties. Furthermore, there has been no showing concerning the likelihood that objectionable application of the rules to other inmates would avoid inmate complaints, the grievance process, and, ultimately, judicial review. Larson has not shown that applying the mootness doctrine here would prevent review of any arguably wrongful application of the rules in the future.
Is the public interest at stake so great that it outweighs mootness considerations? No doubt the public interest in effective rehabilitation and non-arbitrary application of prisoner visitation policies is important. But we cannot determine from the appellate record whether there may in fact have been any interference with Larson's right sufficient to implicate important matters of public interest, and making that determination would require extensive factual development simply to decide whether we should review a mooted issue.
As to other inmates, Larson's complaint did not arise from Spring Creek's institutional rules themselves, but from what he claims was their unduly restrictive application by a few DOC officers. There is no indication of a systemic denial of important rights. The present case is not a suitable vehicle for determining whether there has been a denial of the rights of other Spring Creek prisoners so severe that it justifies review notwithstanding mootness.
We therefore conclude that the public policy exception does not justify deciding Larson's mooted appeal.
For these reasons, Larson's appeal is DISMISSED as moot.
* Entered pursuant to Appellate Rule 214.The circumstances of Larson's transfer are discussed in more detail in Larson v. State, Dep't of Corr Mem. Op. & J. No. 1257 (Alaska, July 5, 2006). Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532 534 (Alaska 2005) (citing Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773 776 (Alaska 2001)). Ulmer, 33 P.3d at 776. We assume that Larson, who is incarcerated under authority of the state of Alaska, is entitled to all of the protections afforded by the Alaska and United States Constitutions, even though he is now incarcerated outside Alaska. It is his absence from Spring Creek, not his absence from Alaska, that bears on mootness. See Larson, Mem. Op. & J. No. 1257 at 2. See Haynes v. Charney, 693 P.2d 831 834 (Alaska 1985); (citing Witt v. Watkins, 579 P.2d 1065 1071 (Alaska 1978)). Doe v. State, 487 P.2d 47 53 (Alaska 1971); see also Myers v. Alaska Psychiatric Inst 138 P.3d 238 244 (Alaska 2006). Legislative Council v. Knowles, 988 P.2d 604 606 (Alaska 1999) (quoting Dep't of Health & Soc. Servs. v. Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755 766 (Alaska 1993)). Akpik, 115 P.3d at 535 (quoting Fairbanks Fire Fighters Ass'n v. City of Fairbanks, 48 P.3d 1165 1168 (Alaska 2002)). See Larson, Mem. Op. & J. No. 1257; Larson v. Cooper, 113 P.3d 1196 (Alaska 2005); Larson v. Cooper, 90 P.3d 125 (Alaska 2004). See, e. g Hallam v. Holland Am. Line, Inc 27 P.3d 751 754 (Alaska 2001) (explaining that pro se litigants may not bring class actions because they lack qualifications and expertise necessary to adequately represent interests of others). -8- 1266 Notes:
* Entered pursuant to Appellate Rule 214.The circumstances of Larson's transfer are discussed in more detail in Larson v. State, Dep't of Corr Mem. Op. & J. No. 1257 (Alaska, July 5, 2006). Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532 534 (Alaska 2005) (citing Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773 776 (Alaska 2001)). Ulmer, 33 P.3d at 776. We assume that Larson, who is incarcerated under authority of the state of Alaska, is entitled to all of the protections afforded by the Alaska and United States Constitutions, even though he is now incarcerated outside Alaska. It is his absence from Spring Creek, not his absence from Alaska, that bears on mootness. See Larson, Mem. Op. & J. No. 1257 at 2. See Haynes v. Charney, 693 P.2d 831 834 (Alaska 1985); (citing Witt v. Watkins, 579 P.2d 1065 1071 (Alaska 1978)). Doe v. State, 487 P.2d 47 53 (Alaska 1971); see also Myers v. Alaska Psychiatric Inst 138 P.3d 238 244 (Alaska 2006). Legislative Council v. Knowles, 988 P.2d 604 606 (Alaska 1999) (quoting Dep't of Health & Soc. Servs. v. Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755 766 (Alaska 1993)). Akpik, 115 P.3d at 535 (quoting Fairbanks Fire Fighters Ass'n v. City of Fairbanks, 48 P.3d 1165 1168 (Alaska 2002)). See Larson, Mem. Op. & J. No. 1257; Larson v. Cooper, 113 P.3d 1196 (Alaska 2005); Larson v. Cooper, 90 P.3d 125 (Alaska 2004). See, e. g Hallam v. Holland Am. Line, Inc 27 P.3d 751 754 (Alaska 2001) (explaining that pro se litigants may not bring class actions because they lack qualifications and expertise necessary to adequately represent interests of others). -8- 1266
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