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Baker v. State (4/20/2007) ap-2094

Baker v. State (4/20/2007) ap-2094

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


FRED A. BAKER, )
) Court of Appeals No. A-9791
Petitioner, ) Trial Court No. 3AN-05-10005 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Respondent. ) No. 2094 April 20, 2007
)
          Petition for Review from the Superior  Court,
          Third  Judicial District, Anchorage,  Michael
          L. Wolverton, Judge.

          Appearances:   Fred  A.  Baker,  in   propria
          persona, Seward, for the Petitioner.  John K.
          Bodick, Assistant Attorney General, Office of
          Special  Prosecutions and Appeals, Anchorage,
          and   Talis  J.  Colberg,  Attorney  General,
          Juneau, for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Fred   A.  Baker  is  pursuing  a  petition  for  post-
conviction  relief in the superior court, and  he  has  lodged  a
petition  for  review.   In his petition, Baker   challenges  the
superior courts failure to enter summary judgement in his favor.
          Bakers  petition  has not yet gone  forward  because  a
preliminary problem has arisen:  the parties disagree on  how  to
calculate  the  filing fee that Baker must  pay  to  pursue  this
appellate litigation.
          Baker  is indigent and, thus, he would normally qualify
for  an  exemption from this Courts normal filing fee of $150.00.
However, Baker is currently a prisoner, and his petition for post-
conviction  relief constitutes litigation against  the  state  as
defined in AS 09.19.100(1).  Because of this, Baker must pay  the
mandatory minimum filing fee specified in AS 09.19.010.
          Baker and the State agree that Bakers mandatory minimum
filing fee must be calculated using the formula specified  in  AS
09.19.010(d),  but  they  disagree concerning  how  this  formula
should  be interpreted.  The pertinent portion of AS 09.19.010(d)
states:
          
          In  setting the [mandatory minimum] fee,  the
          court  ... shall require the prisoner to  pay
          filing fees equal to 20 percent of the larger
          of  the average monthly deposits made to  the
          prisoners account described in (b)(2) of this
          section,  or  the  average  balance  in  that
          account, not to exceed the amount of the full
          filing  fee  required under applicable  court
          rules.
          
          As  can be seen, this subsection requires the
          filing  fee  calculation to be based  on  the
          average  monthly deposits to, and the average
          balance  in, the prisoners account  described
          in [subsection] (b)(2) of this [statute].
                    Subsection  (b)(2) of  the  statute
          declares that a prisoner shall submit to  the
          court  ...  a certified copy of the prisoners
          account   statement  from  the   correctional
          facility  in which the prisoner is being  ...
          held  for the six-month period preceding  the
          submission   of  the  [prisoners  pleadings].
          Thus,   the  reference  in  both  subsections
          (b)(2)  and  (d) is to the prisoners  account
          [in]  the correctional facility in which  the
          prisoner is being ... held.
          The  problem is that, following the
enactment   of  AS  33.30.201(d)   in   2006,
prisoners have two separate accounts:   their
normal  prisoner account (what the Department
calls  the  funds  available  account)  which
contains  money that the prisoner  can  spend
for  everyday purposes, and a forced  savings
account  to which the prisoner has no  direct
access.  This forced savings account contains
money  whose  primary purpose is  to  provide
funds  for the prisoner when the prisoner  is
eventually released from custody.
          The  question  presented  here   is
whether  the  money  in  a  prisoners  forced
savings account should be considered  when  a
court   calculates  the  prisoners  mandatory
minimum filing fee under AS 09.19.010(d).

The statutory background

     In  the  past, the State of Alaska apparently
provided discharge payments (colloquially known as
gate money) to prisoners upon their release.  This
gate  money  was part of the financial  assistance
package  intended  to help prisoners  re-establish
themselves in the community.
     However,   under   22  AAC  05.590,1   Alaska
prisoners now receive no discharge payment or gate
money upon their release.  This regulation reads:

     Upon   release   of  a   prisoner,   the
department  will  not  provide  a   discharge
payment or gate money to the prisoner.   Each
prisoner  is  [only] entitled to receive  any
work  program compensation and prisoner  fund
account money due [the prisoner] at the  time
of release.

          Thus,  when prisoners are  released
from  prison,  they receive  only  the  money
remaining  in  their  prisoner  fund  account
(as  well as any wages that have already been
earned  but that have not yet been  deposited
into the prisoners account).
          This  account was the only prisoner
account that existed in 1995 when the  Alaska
Legislature enacted AS 09.19.010 et seq,  the
chapter of the statutes that establishes  the
mandatory  minimum filing fee  for  prisoners
pursuing civil litigation against the  State.
Thus,  when  the legislature established  the
rules  for  calculating a prisoners mandatory
minimum  fee,  these  fee-calculation   rules
unambiguously referred to the average monthly
deposits to, and the average balance of, this
one prisoner account.
          But   in  2006,2   the  legislature
enacted  AS 33.30.201(d), a law that requires
the Commissioner of Corrections to withhold a
portion  of a prisoners wages and place  this
money  into a special forced savings  account
whose  primary purpose is to ensure that  the
prisoner  will  have some minimal  amount  of
money at the time of their release.
          Under  AS 33.30.201(d), a prisoners
forced savings account is funded by mandatory
transfers  of  a  portion  of  the  prisoners
wages.    Subsection  (c)  of  AS   33.30.201
declares   that  various  portions   of   the
prisoners  wages must be disbursed for  child
support, restitution, utility fees,  and  the
prisoners  normal account (the  account  that
          the prisoner can use to make discretionary
purchases  of  clothing,  commissary   items,
etc.).   Then,  under  subsection  (d),   the
remaining money

[shall]  be credited to the prisoner and  ...
must  be  retained by the department for  the
primary  purpose  of being available  to  the
prisoner   at  the  time  of  release.    The
commissioner   shall   maintain    individual
prisoner  accounts for those  earnings.   The
commissioner   may,   however,   permit   the
prisoner  to draw on a portion of that  money
for  other  purposes  that  the  commissioner
considers appropriate.

          That  is,  the money in a prisoners
forced  savings  account is restricted.   Its
primary  purpose is to provide funds for  the
prisoner   to   use  when  the  prisoner   is
eventually  released  from  custody.   Before
that  time,  the money in the forced  savings
account  can be spent only with the  approval
of the Commissioner of Corrections.  The only
money   to   which  a  prisoner  has   ready,
discretionary  access is  the  money  in  the
prisoners normal account.
          When  the  legislature created  the
forced   savings  accounts   in   2006,   the
legislature did not amend the fee-calculation
rule  specified in AS 09.19.010, nor did  the
legislature  amend any other  portion  of  AS
09.19  to indicate how they wished to  handle
the  new  forced  savings accounts.   Indeed,
even today, the administrative regulations of
the  Department  of  Corrections  contain  no
reference  to  a forced or mandatory  savings
account.  Instead, these regulations continue
to  refer  to a single prisoner fund account.
See  22  AAC  05.105, 22 AAC 05.106,  22  AAC
05.331, and 22 AAC 05.590.3
          But    although   there   are    no
administrative  regulations  governing  these
forced savings accounts, the Commissioner  of
Corrections   has  issued   a   policy   that
addresses these accounts.  In December  2005,
apparently   anticipating  the   legislatures
passage  of  AS  33.30.201(d)  the  following
spring,  the Commissioner adopted Policy  No.
304.01, Prisoner Wage Disbursal.  (A copy  of
this Policy is appended to this opinion.)
          Under   Policy   No.   304.01,    a
prisoners   wages   are   divvied   up    and
distributed according to the following rules,
in the listed order of priority:

                                     
Priority     court-ordered support   up to 40% of wages
One          for the prisoners
             dependents
                                     
Priority     reimbursing the State   up to 5% of wages
Two          for violent crime
             compensation paid to
             victims of the
             prisoners crimes
                                     
Priority     restitution payments    up to 10% of wages
Three        ordered by the
             sentencing court
                                     
Priority     civil judgements        up to 5% of wages
Four         arising from the
             prisoners criminal
             conduct
                                     
Priority     fees for the prisoners  actual fees, up to a
Five         utilities; see AS       $3.00 maximum per month
             33.30.017
                                     
Priority     personal discretionary  up to 25% of wages
Six          uses (e.g., clothing,
             photocopying, and
             purchases from the
             commissary)
                                     
Priority     fines ordered by the    up to 10% of wages
Seven        sentencing court
                                     
Priority     Mandatory Savings       35% of wages until the
Eight        i.e., the forced        balance in the forced
             savings account         savings account reaches
             required by AS 33.30.   $250; thereafter, 5% of
             201(d)                  monthly wages
                                     Exception:  Inmates
                                     serving 8 years or more
                                     are exempt from Mandatory
                                     Savings.
                                     
Rule for                             Any wages remaining after
any                                  [the foregoing]
Remainder:                           priorities have been
                                     satisfied will be equally
                                     allocated to personal use
                                     (Priority Six) and
                                     mandatory savings
                                     (Priority Eight).

          As  the attentive reader will  see,
the  percentages  listed  in  the  right-hand
column  total  more than 100  percent.   This
means  that, depending on the amount of money
taken from a prisoners wages under Priorities
One through Seven, there may not be much left
for the prisoners forced savings account.
          Moreover,  even  when  the   forced
savings  account is fully funded as  provided
under  Priority Eight, the account will  grow
relatively  slowly after the balance  reaches
$250   because,  at  that  point,  only  five
percent  of the prisoners monthly wages  will
be distributed to the account.
          Prisoners wages are low.  Under  AS
33.30.201(a),  these  wages  are  essentially
capped at fifty percent of the minimum  wage.
From   this   Courts   experience   examining
prisoner account statements, it is often  the
case  that only a few dollars per month  will
be  deposited into a prisoners forced savings
account.
          Finally,   the   Commissioner   has
declared  that [i]nmates serving 8  years  or
more  are exempt from Mandatory Savings.   On
its  face, this language appears to mean that
prisoners who receive sentences of 8 years or
more   will  never  have  a  forced   savings
account.    Seemingly,  such  a  rule   would
conflict with the statutory mandate that  the
Commissioner   establish  a  forced   savings
account  for every prisoner.  It  would  also
mean  that  the  prisoners sentenced  to  the
longest  terms  of  imprisonment  might  have
little  or  no money when they are  released.
Conceivably, this language is meant to convey
a  different  rule  the rule that  no  forced
savings  deduction  will  be  made   from   a
prisoners wages until the prisoner  has  less
than  8  years  remaining in their  sentence.
This  interpretation  is  supported  by   the
wording of another portion of the same Policy
section VII-B.3.a.  [Sic: there is no section
VII-B.3.b.]   This subsection of  the  Policy
states:  Prisoners who are more than 8  years
from   their  tentative  release  dates  will
automatically receive an exemption  from  the
mandatory savings deduction.

The factual background

          Since the enactment of AS 09.19 in 1995, this
Court  has repeatedly been asked to calculate mandatory
minimum  filing fees for prisoners pursuing  litigation
against the State.  Because, under AS 09.19.010(d), the
mandatory  minimum  filing fee hinges  on  the  average
monthly  deposits  made  to the prisoners  account  ...
[and]  the  average  balance in that  account  for  the
preceding  six months, any prisoner who applies  for  a
reduction  of  the normal filing fee must  provide  the
records    from    their   prisoner   account.     More
specifically,   the  prisoner  must  ask   the   prison
administration  to provide account statements  for  the
prisoners use.
          This  Court  takes  note that  sometimes  the
prison administration furnishes account statements  for
both  the  prisoners normal account and  the  prisoners
forced savings account, while at other times the prison
administration  furnishes  only  the  prisoners  normal
account  statements,  with no  mention  of  the  forced
savings account.
          Moreover,  in the past, when this  Court  has
questioned why the Department has included a  prisoners
forced  savings  account balance when  calculating  the
mandatory  minimum  filing fee, the Departments  answer
has  been  that  the  Commissioner has  concluded  that
paying filing fees is an appropriate use of a prisoners
forced savings account money  see AS 33.30.201(d)  and,
therefore, the balance in the prisoners forced  savings
account   should   be  included  in  the   filing   fee
calculation.
          But the Department is apparently not applying
this policy in a uniform manner.
          For  instance, this Court has another pending
case, Esmailka v. State, File No. A-9812, in which  the
average balance of the prisoners forced savings account
was  $891.16.   Combining this forced  savings  account
balance  with the much smaller average balance  in  the
prisoners  normal  account ($59.25),  Judge  Mannheimer
ordered  the prisoner, David Esmailka, to pay the  full
filing fee of $150  because twenty percent of Esmailkas
combined balances was an even larger amount of money.
          Because Esmailkas normal account did not have
sufficient  money  to cover this $150  filing  fee,  he
attempted   unsuccessfully, it appears  to  obtain  the
needed money from his forced savings account.  Esmailka
sent  a letter to this Court, stating that he tried  to
draw  money from his forced savings account to pay  the
filing  fee,  but [the] DOC Deputy Commissioner  denied
[his]  request.  As a consequence, Esmailka  explained,
he  does  not  have sufficient money to  pay  the  $150
filing fee.
          The Clerks Office treated Esmailkas letter as
a  motion for full-court reconsideration of the  filing
fee issue, and the Clerk served Esmailkas letter on the
State  on March 9th.  As of today, the State has  filed
no response.
          These   inconsistencies  in  the  Departments
handling  of this matter have prompted us to re-examine
the  use  of  a  prisoners forced savings account  when
calculating the mandatory minimum filing fee  under  AS
09.19.010(d).  For the reasons that follow, we conclude
that  the forced savings account balance should not  be
used for this purpose.

Why  we conclude that the balance in a prisoners forced
savings account should not be used when calculating the
prisoners  mandatory  minimum  filing  fee   under   AS
09.19.010(d)

          As  this Court explained in George v.  State,
944 P.2d 1181 (Alaska App. 1997), the mandatory minimum
filing  fee  provisions of AS 09.19  were  intended  to
deter   prisoners  from  filing  endless   recreational
litigation  and  frivolous litigation.   Id.  at  1186,
quoting   the   governors   transmittal   letter   that
accompanied  House  Bill 201 (19th  Legislature),  1995
House Journal 488-89.
          As  we noted in George, prisoners often  have
[little]  at  stake  if  they litigate  and  lose,  and
litigation  often  constitutes  a  diversion  from  the
monotony  of prison life.  Id., 944 P.2d at 1188.   The
legislature  decided  to try to  deter  prisoners  from
filing  frivolous lawsuits by placing a modest economic
restraint on a prisoners decision to initiate a lawsuit
that  is,  by  requiring prisoners to pay  a  mandatory
minimum  filing  fee  based on a  percentage  of  their
available resources.  Id. at 1186-88.
          AS   09.19.010(d)   lists   two   alternative
formulas  for  calculating  this  minimum  filing  fee:
twenty  percent of the average monthly deposits to  the
prisoners  account, or twenty percent  of  the  average
balance  of  that  account.  Under  this  statute,  the
mandatory  minimum filing fee is the greater  of  these
numbers  (unless this number exceeds the normal  filing
fee,  in  which case the prisoner must simply  pay  the
normal filing fee).
          It  appears  that the legislature  recognized
that   if   the  mandatory  minimum  filing  fee   were
calculated based simply on a prisoners account balance,
this  would act as a disincentive for prisoners to save
their money.  That is, prisoners would soon learn  that
their  mandatory filing fees would be close to zero  if
they  spent  nearly all of their disposable income  and
maintained  only  small  balances  in  their   prisoner
accounts.
          This would tend to defeat the purpose of  the
mandatory   filing  fee  (i.e.,  to  inhibit  frivolous
litigation).   Moreover, it would also tend  to  defeat
another  important  legislative  purpose:   encouraging
prisoners  to  save  for their  future.   As  explained
above,  prisoners do not receive discharge payments  or
gate  money  when they are released from  prison.   The
only money they receive is the money remaining in their
prisoner  account.  Thus, any law that gives  prisoners
an  incentive to spend all of their money  before  they
leave prison tends to defeat the rehabilitative goal of
having  prisoners leave custody with at least a  modest
amount  of  money  to ease their transition  back  into
society.
          Accordingly,  the  legislature  provided   an
alternate method for calculating the mandatory  minimum
fee:   a percentage of the average monthly deposits  to
the    prisoners   account.    Under   this   alternate
calculation, the mandatory minimum fee is based on  the
monthly  average  of the money going into  a  prisoners
account,  whether that money is spent  or  not.   Thus,
even  if  a  prisoner  routinely spends  all  of  their
available money, this would not relieve the prisoner of
the  obligation to pay a significant mandatory  minimum
filing fee.
          As  explained above, each prisoner  had  only
one  prisoner account when the legislature  established
the  mandatory minimum filing fee in 1995.  Thus,  when
the  legislature  set  the  rules  for  calculating   a
prisoners   mandatory   minimum   fee,   these    rules
unambiguously referred to the average monthly  deposits
to,  and the average balance of, this one account.  But
since   2006,   because   of  the   enactment   of   AS
33.30.201(d), the Department of Corrections is required
to  maintain  a  separate forced  savings  account  for
prisoners    money  that  must  be  retained   by   the
department  for the primary purpose of being  available
to the prisoner at the time of [their] release.
          The  existence of the forced savings accounts
creates  an  ambiguity  in  the  rules  governing   the
calculation of the mandatory minimum filing  fee  under
AS 09.19.010(d).
          Under  this  statute,  a prisoners  mandatory
minimum  filing fee is calculated by reference  to  the
average  balance  in  [the  prisoners]  account.    The
question  is:   should  the  accumulated  money  in   a
prisoners  forced  savings  account  be  included  when
calculating  the  average  balance  of  the   prisoners
account?   Or  should the calculation  of  the  average
balance be limited to the funds in the prisoners normal
account   i.e.,  the  money that is available,  without
limitation, to the prisoner for discretionary spending?
          (This  issue  is  moot with  respect  to  the
alternate  calculation prescribed  by  AS  09.19.010(d)
the  calculation of the average monthly deposits to the
prisoners account.  The Department of Corrections funds
a   prisoners  forced  savings  account  by   initially
depositing  all of the prisoners available  wages  into
the  prisoners  normal  account, and  then  immediately
transferring  a  percentage  of  those  wages  to   the
prisoners forced savings account.  Thus, the amount  of
deposits into the prisoners normal account will  always
be  higher  than   and  will necessarily  include   the
deposits into the prisoners forced savings account.)
          There  was no mention of this fee-calculation
problem   during  the  several  legislative   committee
discussions of Senate Bill 310 (24th Legislature),  the
bill  that ultimately became SLA 2006 ch. 58  and  that
enacted  the  forced savings account provisions  of  AS
33.30.201.4
          The  question, as we see it, is  whether  the
Commissioners  decision  to require  prisoners  to  pay
filing  fees  from  their forced  savings  accounts  is
inconsistent  with  the  legislatures  mandate,  in  AS
33.30.201(d),  that the primary purpose of  the  forced
savings  accounts is to provide funds for prisoners  at
the time of their release.
          As  a  practical matter, a prisoner who works
throughout   a   lengthy  term  of   imprisonment   can
accumulate  several  hundred dollars  in  their  forced
savings  account  enough money so that the  balance  in
this  account  equals or exceeds $750.   (This  is  the
situation   confronting   David   Esmailka   in    File
No. A-9812.)
          If  this  forced savings account  balance  is
then  used to calculate the prisoners mandatory minimum
filing fee under AS 09.19.010(d), the prisoner will  be
forced  to  pay the normal filing fee of $150   because
the statute requires a mandatory filing fee equal to 20
percent  of  the  prisoners  average  account  balance,
unless  that 20 percent would exceed the normal  filing
fee.   Thus, once a prisoner accumulates $750 in  their
forced savings account, this statutory calculation will
always  result in the prisoner paying the  normal  $150
filing fee (since one-fifth of $750 equals $150).
          At  first blush, this result might seem fair.
What  difference should it make whether a prisoner  has
accumulated $750 in their normal account as opposed  to
their  forced savings account?  Either way,  the  money
belongs to the prisoner.
          But  as  this Court explained in George,  the
requirement  of  a  mandatory minimum  filing  fee  was
intended   to   discourage  frivolous  or  recreational
litigation by confronting prisoners with the  trade-off
faced  by  everyone else who initiates litigation:   if
the  prisoner chooses to pursue the lawsuit, they  will
have  to  use  money  that otherwise  would  have  been
available  to  purchase other things  that  they  might
want.
          This  rationale applies to the money  in  the
prisoners normal account, but it does not apply equally
to the money in the prisoners forced savings account.
          A  prisoner has ready access to the money  in
their  normal  account.   They  can  use  it  for   any
permissible   purpose    for  instance,   to   purchase
clothing,  or  postage,  or  candy  bars,  or  to  make
donations  to  charity   simply  by  asking.   If   the
prisoner is required to pay a mandatory filing fee from
this  account,  the  prisoner will necessarily  lose  a
portion  of  their ability to make these  discretionary
purchases and expenditures.  Thus, the legislatures aim
of discouraging frivolous litigation will be advanced.
          But a prisoner has no discretionary access to
the money in their forced savings account.  By statute,
the  primary  purpose of this account is to  accumulate
money for the future  for the day when the prisoner  is
ultimately released from custody.  The legislature  has
therefore  declared that this money can be  spent  only
with  the  consent of the Commissioner.  Although  this
money  belongs  to  the  prisoner,  it  is  beyond  the
prisoners reach.
          Because of this, there is no immediate trade-
off  when  money  is taken out of the prisoners  forced
savings  account to pay a filing fee.  This money  does
not  represent funds that the prisoner might  otherwise
have   used  for  pleasurable  or  other  discretionary
purposes.   The prisoners ability to make discretionary
purchases  is  completely unaffected by a reduction  in
their  forced savings account.  Rather, the only effect
is a long-term effect:  less money will be available to
the prisoner upon their release.
          This  leads  to  a second point.   Under  the
Commissioners  interpretation of  the  law  (i.e.,  the
Commissioners position that the balance in a  prisoners
forced   savings  account  should  be   included   when
calculating   the   mandatory  minimum   filing   fee),
prisoners  will  sometimes  be  required   to   pay   a
substantial  filing  fee  from  their  forced   savings
account.  The problem arises in this fashion:
          A  prisoner  may  have  very  little  current
income,  or a prisoner may spend about as much  as  the
prisoner earns; in either event, the prisoner will have
only  a  small amount of money in their normal account.
But,  through prior years of forced savings  transfers,
the  prisoner may have several hundred dollars in their
forced  savings account.  If the balance in that forced
savings account is included in the calculation  of  the
mandatory   filing  fee  under  AS  09.19.010(d),   the
prisoner will owe a substantial filing fee  up  to  and
including  the normal filing fee of $150.  But  because
the  prisoners  normal account contains  little  money,
this  mandatory filing fee must come from the prisoners
forced savings account.
          Money taken from a forced savings account  is
commonly replenished only slowly.  As explained  above,
prisoners  wages tend to be low, and after the  balance
in  a  prisoners forced savings account  reaches  $250,
only   five   percent  of  the  prisoners   wages   are
transferred  to  their forced savings  account.   As  a
practical matter, this means that it may take a year or
two  for the prisoner to replenish their forced savings
account  after a filing fee of $150 has been  withdrawn
from the account.
          Because  it may take a prisoner such  a  long
time  to  replenish their forced savings  account,  the
withdrawal  of  $100  to  $150 from  a  forced  savings
account  tends  to defeat the primary  purpose  of  the
forced  savings accounts  i.e., the legislative purpose
of  making sure that prisoners have a modest amount  of
money  when they are released, to ease their transition
back into society.
          An   acute   instance  of  this  problem   is
presented  in  Bakers case.  According to the  prisoner
account  statements  furnished  by  the  Department  of
Corrections, Baker had no income from the beginning  of
December 2005 through the end of November 2006.  During
those twelve months, the only deposits to Bakers normal
prison  account (his funds available account) consisted
of money transferred from his forced savings account to
pay court filing fees and associated costs (photocopies
and  postage).  And, because of those filing fees,  the
balance  in  Bakers  forced savings account  fell  from
$210.42  (on December 1, 2005) to $108.87 (on  December
5, 2006).
          In  other words, Baker has lost approximately
half   of  his  forced  savings  to  filing  fees   and
associated court costs.  And, because he currently  has
no  income,  his forced savings account  is  not  being
replenished.   Nevertheless, the State argues  that  we
should  calculate Bakers mandatory minimum  filing  fee
based  on the average balance in Bakers forced  savings
account over the relevant six-month period.  This would
result  in  Baker having to pay another filing  fee  of
$31.29  almost one-third of the remaining money in  his
already depleted forced savings account.
          A    third    point:     The    Commissioners
interpretation  of AS 09.19.010(d), combined  with  the
fact  that  the prisoners serving the longest sentences
are  exempt  from  forced savings,  likewise  tends  to
defeat  the legislatures purpose of deterring frivolous
or recreational lawsuits against the State.
          As   explained  above  (in  the  chart),  the
Commissioner  has  declared that  [i]nmates  serving  8
years or more are exempt from Mandatory Savings.  It is
unclear   whether  the  Commissioner  means  that   all
prisoners who receive sentences of 8 years or more need
never  make  contributions to a forced savings  account
or  whether, instead, the Commissioner means that these
prisoners  need  not  make contributions  to  a  forced
savings  account  until  the  last  8  years  of  their
sentence.   But,  in either case, this  rule  tends  to
defeat  the legislative purpose of deterring  frivolous
or recreational litigation.
          Obviously, long-term prisoners generally have
a   greater   incentive  to  engage   in   recreational
litigation   against   the  State.    But   under   the
Commissioners policy, these prisoners are exempted from
having  to devote a portion of their wages to a  forced
savings  account (or, at least, they are exempted  from
this   requirement  until  their  final  8   years   of
imprisonment).   Thus,  these  prisoners  who  have   a
greater incentive to initiate frivolous litigation are,
at  the  same time, less deterred from initiating  that
litigation:   they do not face the prospect  of  having
their  mandatory minimum filing fee increased based  on
the accumulated balance in their forced savings account
because they have no such account.
          For    these    reasons,   we   reject    the
Commissioners position that the balance in a  prisoners
forced   savings  account  should  be   included   when
calculating the prisoners mandatory minimum filing  fee
under     AS     09.19.010(d).     The    Commissioners
interpretation  of  the statute does not  significantly
further  the  aim  of  deterring  frivolous  litigation
because,  as  explained  above,  a  prisoner  faces  no
immediate  economic trade-off when the  filing  fee  is
paid   from  the  prisoners  forced  savings   account.
Moreover,  as  also explained above, the  Commissioners
interpretation  of  the statute  tends  to  defeat  the
legislative purpose of making sure that prisoners  have
some modest amount of money upon their release.
          This  is not to say that the Commissioner  is
barred  from  allowing the money in a prisoners  forced
savings  account  to  be used for  paying  a  mandatory
minimum filing fee.  As explained above, there will  be
times  when,  because a prisoner has spent  essentially
all  of their income, the mandatory filing fee will  be
calculated based on the average monthly deposits to the
prisoners account  and the prisoner will not have money
readily  available  to pay this filing  fee.   In  such
instances,  it  would not necessarily be  an  abuse  of
discretion for the Commissioner to authorize payment of
the  filing  fee  from  the  prisoners  forced  savings
account    just  as  the  Commissioner  might  likewise
authorize  the  release  of forced  savings  for  other
emergencies, hardships, or unanticipated needs.
          In  other  words,  we  do  not  question  the
propriety   of   section  VII-B.2  of   Department   of
Corrections  Policy 304.01, which states (in  pertinent
part) that [m]andatory savings may be used to pay court-
ordered filing fees as determined [under] AS 09.19.010.
This  provision of the Policy appears to be  consistent
with    the    Commissioners   authority    under    AS
33.30.201(d).5
          But   the  question  presented  here  is  not
whether a prisoners forced savings may properly be used
to  pay  a  mandatory minimum filing fee.  Rather,  the
question is whether the balance in the prisoners forced
savings  account should be included in the  calculation
of   that   mandatory  filing  fee.   For  the  reasons
explained  here,  we conclude that the  forced  savings
account   balance  should  not  be  included  in   this
calculation.
          Based  on the account statements provided  by
the  Department  of Corrections, Baker  had  no  income
during  the  six  months preceding the filing  of  this
petition  for review.  The only deposits to his  normal
(funds  available)  prison account consisted  of  money
transferred  from  his forced savings  account  to  pay
court  filing fees and associated costs.   And,  except
for  the few days when the money to pay court costs was
temporarily  sitting in his normal prison account,  the
balance of Bakers normal prison account was zero.
          It  appears  that the only reason this  money
was  ever present in Bakers normal prison account stems
from  the  accounting practices of  the  Department  of
Corrections.  Instead of releasing this money  directly
from  Bakers  forced  savings account,  the  Department
transferred  the money to Bakers normal prison  account
before  allowing  it  to be spent on  filing  fees  and
associated  court  costs.  If not  for  this  practice,
Bakers  account  would have had  no  deposits,  and  an
average balance of $0.00, throughout the relevant  six-
month time period.  We therefore will ignore this money
when  calculating Bakers mandatory minimum  filing  fee
under AS 09.19.010(d).
          When we perform the calculation specified  by
AS  09.19.010(d) without reference to  the  balance  in
Bakers forced savings account, and without reference to
the  money that was temporarily transferred from Bakers
forced  savings account into his normal prison  account
to  pay  previous filing fees and associated costs,  we
find   that   Bakers  filing  fee  for  this  appellate
litigation is $0.00.
          Accordingly,  IT IS ORDERED  that  Baker  may
proceed with this petition for review without paying  a
filing fee.

_______________________________
1This regulation was originally enacted as 7 AAC 60.590,
when  the  Department  of Corrections  was  a  division
within  the  Department of Health and Social  Services.
See Administrative Register 63, effective September 10,
1977.    The   current  form  of  the  regulation   was
promulgated  in Administrative Register 101,  effective
January 9, 1987.

2See SLA 2006, ch. 58,  7.

3Three of these regulations  22 AAC 05.105, 331, and 590
first   appeared   in   Administrative   Register   101
(effective  January 1987).  The fourth, 22 AAC  05.106,
was  promulgated  in 1999; see Administrative  Register
150 (effective April 1999).

4Note:  In the committee minutes listed here, the committees
are  discussing House Committee Substitute for  Senate  Bill
310, as amended in the House.

Minutes of the Senate Finance Committee for March 27,  2006,
from  9:04  a.m.  to  9:23 a.m.:  The Committees  discussion
centered  mainly  on how a prison worker program  encourages
the  rehabilitation of the prisoners who participate in  the
program, by convincing them that there are tangible benefits
to honest labor.

Minutes  of the House State Affairs Committee for April  13,
2006,   from   8:03  a.m.  to  8:50  a.m.:   The  Committees
discussion  mainly dealt with the issue of  whether  working
prisoners   would   be   covered  by  workers   compensation
insurance,  and the additional problem of making  sure  that
law-abiding  workers  were  protected  from  competition  by
criminal  workers.  (Remarks of Representative Lynn  @  8:44
a.m.)

Minutes of the House Labor and Commerce Committee for  April
24,  2006, from 4:25 p.m. to 4:49 p.m.:  Darwin Peterson,  a
member  of  Senator Lyda Greens staff  whose committee,  the
Senate  Finance Committee, was the sponsor of  the  original
bill   explained that Senate Bill 310 was introduced at  the
request of the Department of Corrections and that the intent
of  the  bill  [was]  to reinstate the  Alaska  Correctional
Industries  program,  which  was [inadvertently]  sunsetted,
along  with the Correctional Industries Commission, in  July
of  2005.   According  to Peterson, Senate  Bill  310  would
reestablish  and  improve the aforementioned  program.   The
Committees ensuing discussion focused almost entirely on the
issue  of  whether prison labor would unfairly compete  with
private   industry  and  civilian  labor.   There   was   no
discussion  at  all  of subsection (d), the  provision  that
created the forced savings accounts.

Minutes  of the House Finance Committee for April 27,  2006,
from  8:52  a.m.  to  9:18 a.m.:  The Committees  discussion
focused almost entirely on the issue of whether prison labor
would  unfairly compete with private industry  and  civilian
labor.   Again, there was no discussion at all of subsection
(d), the provision that created the forced savings accounts.

5Compare  Wilson v. Dept of Corrections, 127 P.3d  826,  829
(Alaska  2006)  (quoting Bartley v. State, Dept  of  Admin.,
Teachers Ret. Bd., 110 P.3d 1254, 1261 (Alaska 2005)):  When
an  administrative  regulation is  adopted  under  statutory
authority,  [appellate  courts]  review  the  regulation  to
determine  whether  it  is consistent  with  and  reasonably
necessary  to  carry  out  the  purposes  of  the  statutory
provisions  conferring rule-making authority on  the  agency
and  whether  it is reasonable and not arbitrary considering
the  legislative purpose.  ...  [A]n agencys  interpretation
of  a  law within its area of jurisdiction can help  resolve
lingering ambiguity [in that statute or regulation,] and [an
appellate  court]  should exercise restraint  and  look  for
weighty  reasons before substituting [its] judgment for  the
agencys in interpreting a statute or regulation.

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