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State v. Anthony et al (9/13/91), 816 P 2d 1377
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DENNIS RAY ANTHONY, JAMES RICHARD ) O P I N I O N
FLAKE, DAVID MATTHEW LOGUE, RICHARD) ON REHEARING
R. ECKLUND, VICTOR E. CHAMBERS, on )
behalf of themselves and all other )
persons who are now or will be )
similarly situated, ) [Opinion 3753 -
Case No. 3PA-88-1009 CI, ) September 13, 1991]
LEROY K. SMITH, ROGER M. PIKE, )
PATRICK PLETNIKOFF, RICHARD D. )
NITZ, MICHAEL A. BATEMAN, )
ROBERT D. LOZZIO, ROBERT D. THRALL,)
CASE NO. 3PA-88-601 CI, )
REGINALD L. SILVERNAIL, )
CASE NO. 3KN-88-816 CI, )
ANTHONY L. BROWN, )
CASE NO. 3AN-88-8966 CI, )
EDWARD P. LOWRY, )
CASE NO. 3AN-88-9165 CI, )
JOHN C. ASPELL, )
CASE NO. 3AN-88-8987 CI, )
RICHARD H. KRANTZ, )
CASE NO. 3AN-88-8986 CI, )
SIDNEY R. HERTZ, PETER W. THORSEN, )
CASE NO. 3AN-88-10971 CI, )
TERRY F. NEWELL, )
CASE NO. 3AN-88-966 CI, )
ROBERT G. KLINK, )
CASE NO. 3KN-88-970 CI, )
) Supreme Court No. S-3650
STATE OF ALASKA, DEPARTMENT OF )
) Supreme Court No. S-3765
Appellant, ) 3AN-89-3807 CI
RICHARD CARL SNYDER, )
) [No. 3753 -
Appellee. ) September 13, 1991]
Petitions for Rehearing of Appeal from
the Superior Court of the State of Alaska,
Third Judicial District, Palmer/Anchorage,
Beverly W. Cutler and Karen L. Hunt, Judges.
Appearances: Marilyn May, Assistant
Attorney General, Anchorage, and Jeffrey W.
Bush, Assistant Attorney General, Juneau, and
Douglas B. Baily, Attorney General, Juneau,
for Appellant. Pete Ehrhardt, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellees Anthony, Silvernail, Newell and
Klink. Edward P. Lowry, Sidney R. Hertz,
Anthony L. Brown, Appellees pro se, Seward,
and Leroy K. Smith, Appellee pro se, Palmer.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
In State v. Anthony, 810 P.2d 155 (Alaska 1991), we
concluded that AS 43.23.005(d), which makes
incarcerated felons ineligible for permanent fund
dividends, does not violate the equal protection clause
of the Alaska Constitution or the United States
Constitution. We did not address whether the statute
violates the ex post facto clause of either
constitution and therefore grant the appellees'
petitions for rehearing to resolve this issue.
The United States Supreme Court has summarized the
characteristics of an ex post facto law as follows:
[A]ny statute which punishes as a crime
an act previously committed, which was
innocent when done; which makes more
burdensome the punishment for a crime, after
its commission; or which deprives one charged
with a crime of any defense available
according to law at the time when the act was
committed, is prohibited as ex post facto.
Dobbert v. Florida, 432 U.S. 282, 292 (1977) (quoting Beazell v.
Ohio, 269 U.S. 167, 169-70 (1925)).1 The first and the
third characteristics clearly do not apply to this
case. The inmates do not challenge the validity of
their convictions. Alaska Statute 43.23.005(d) does
not alter the definition of any crime nor affect any
criminal defenses. The inmates simply argue that by
declaring them ineligible for permanent fund dividends
they were previously entitled to receive, the statute
increases the punishment for their crimes after the
commission of these crimes.
The mere fact that AS 43.23.005(d) alters a convicted
felon's circumstances to his or her disadvantage does
not in itself invalidate the statute as ex post facto.
See, e.g., Flemming v. Nestor, 363 U.S. 603, 613-14
(1960) (dismissed ex post facto challenge to statute
terminating social security retirement benefits of
deported aliens); De Veau v. Braisted, 363 U.S. 144,
160 (1960) (upheld New York statute prohibiting
solicitation of waterfront employees by labor
organization if any officer or agent of such
organization had been convicted of a felony); Jones v.
Heckler, 774 F.2d 997 (10th Cir. 1985) (upheld statute
denying social security benefits to felons during
period of incarceration); Auditor Gen. v. Olezniczak, 4
N.W.2d 679, 680-81 (Mich. 1942) (upheld prison
reimbursement act imposing civil liability on all
prisoners able to pay for their maintenance); Golden v.
Okfuskee County Election Bd., 723 P.2d 982 (Okla. 1986)
(upheld law forbidding persons who have entered guilty
pleas to certain offenses from holding public office).
The United States Supreme Court has held that a statute
enacted for valid regulatory purposes rather than
simply to punish individuals for their past conduct
does not violate the ex post facto clause. De Veau,
363 U.S. at 160. As we noted in our original opinion,
the articulated purpose of AS 43.23.005(d) is to obtain
funds for crime victims. In addition, we noted that
the parties did not dispute at trial that a purpose of
the statute is to reimburse the state for the cost of
confinement. It is significant that a person convicted
of a felony who is not sentenced to incarceration is
not made ineligible for a permanent fund dividend.
Since the purpose of the statute is compensatory rather
than punitive, we conclude that it does not violate the
ex post facto clause of either the United States or the
Unlike the statutes at issue in most of the cases
relied on by the inmates, AS 43.23.005(d) does not
change the criminal justice system itself in any way.
The statute's effect is similar to that of the statute
upheld in Dobbert:
The crime for which the present
defendant was indicted, the punishment
prescribed therefor, and the quantity or the
degree of proof necessary to establish his
guilt, all remained unaffected by the
432 U.S. at 294 (quoting Hopt v. Utah, 110 U.S. 574, 589-90
(1884)). The statute does not remove the possibility
of probation as in Michigan v. Wells, 360 N.W.2d 219
(Mich. App. 1984); increase the period of probation
that can be required as in Arizona v. Mendivil, 592
P.2d 1256 (Ariz. 1979), and People v. Moon, 337 N.W.2d
293 (Mich. App. 1983); eliminate an advantageous
sentencing option as in Lindsey v. Washington, 301 U.S.
397 (1937), and United States v. Romero, 596 F. Supp.
446, 449 (D.N.M. 1984); or impose community service as
in Doyle v. Florida, 513 So. 2d 188, 190 (Fla. Dist.
Ct. App. 1987).
The inmates also rely on cases in which courts held
applications of statutes imposing additional costs on
criminals to those whose crimes were committed prior to
the effective date of the statutes violated
constitutional prohibitions against ex post facto laws.
See Yost v. Florida, 489 So. 2d 131 (Fla. Dist. Ct.
App. 1986) (imposition of court costs of $200, in
addition to other fines and costs, when any person is
convicted of a felony), aff'd, 507 So. 2d 1099 (Fla.
1987); Illinois v. Timmons, 449 N.E.2d 1366, 1372 (Ill.
App. Ct. 1983) (imposition in sentencing of $60
surcharge, in addition to fine and costs, for most
criminal or traffic offenses); Loomer v. Wyoming, 768
P.2d 1042, 1049 (Wyo. 1989) (costs of prosecution "may
be added to and made a part of the sentence" in any
felony or misdemeanor case).
Unlike AS 43.23.005(d), the statutes at issue in these
cases all affected the sentence of the criminal
defendants involved. In Yost, for example, the statute
provided that no "gain time"could accrue on a sentence
until all fees and court costs were paid and that
indigents be sentenced to a term of community service
in lieu of paying costs. 489 So. 2d at 132.3 The
statute in Timmons explicitly labeled the surcharge at
issue as a "penalty assessment."449 N.E.2d at 1372.
In Loomer the statute provided that the additional
costs be "added to and made a part of the sentence."
768 P.2d at 1049.
In the absence of any evidence that the intent or
effect of AS 43.23.005(d) is punitive, we conclude that
the application of the statute to felons convicted of
crimes committed prior to the statute's effective date
is not ex post facto.
1. The parties agree that the ex post facto prohibition of
the Alaska Constitution is the same as that of the
United States Constitution. The United States
Constitution provides that "[n]o state shall . . . pass
any bill of attainder, ex post facto law or law
impairing the obligation of contracts . . . ." Art. I,
10. The Alaska Constitution provides that "[n]o bill
of attainder or ex post facto law shall be passed."
Art. I, 15. We have previously found no reason to
construe our state ex post facto prohibition
differently from the federal provision. State v.
Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988); Danks v.
State, 619 P.2d 720, 722 (Alaska 1980).
2. The inmates rely on United States v. MacDonald, 607 F.
Supp. 1183 (E.D.N.C. 1985), in which the court held
that a federal statute requiring forfeiture of any
proceeds received by a criminal defendant for selling
the story of his or her crimes was ex post facto as
applied to a criminal defendant convicted of crimes
committed prior to passage of the statute. Although
legislative history indicated that one of the purposes
of the act was to compensate crime victims, the court
found that the government's goal was to prevent
wrongdoers from profiting from their crimes. Id. at
The inmates offered no evidence that AS 43.23.005(d)
had a similar punitive intent. If the legislature
simply intended to take the dividends from incarcerated
felons for the purpose of paying a higher dividend to
the rest of the state's residents, then ex post facto
problems might arise.
3. On appeal, the Florida Supreme Court emphasized the
significance of the penalty provisions. Following the
lower court's decision, the statute was amended to
delete the penalty provisions for failure to pay the
fees and costs. The supreme court noted that
"[r]espondent concedes that the statute, as amended,
does not violate the ex post facto clause." Florida v.
Yost, 507 So. 2d 1099, 1101 (Fla. 1987).