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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandon v Corrections Corporation of America, et al. (07/27/2001) sp-5438

Brandon v Corrections Corporation of America, et al. (07/27/2001) sp-5438

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


RICHARD BRANDON,              )
                              )    Supreme Court No. S-9228
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-7897 CI
                              )
CORRECTIONS CORPORATION OF    )
AMERICA, dba CENTRAL ARIZONA  )
DETENTION CENTER, MICHAEL     )
SAMBERG, Chief Operating      )
Officer; and the STATE OF     )
ALASKA, DEPARTMENT OF         )
CORRECTIONS, MARGARET PUGH,   )
COMMISSIONER,                 )    O P I N I O N
                              )
             Appellee.        )    [No. 5438 - July 27, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
          Brian C. Shortell and Michael L. Wolverton, Judges.


          Appearances: Richard Brandon, pro se, Seward. 
Timothy W. Terrell, Assistant Attorney General, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellees.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          When Richard Brandon, a prisoner in the Alaska
corrections system, commenced litigation against the State of
Alaska in a civil action, he also filed a Prisoner Request for
Filing Fee Exemption under AS 09.19.010 and a motion to waive the
filing fee based on a constitutional challenge to the statute.  The
first superior court judge assigned to the case ordered Brandon to
pay reduced filing fees and granted his motion for an extension of
time, but did not mention his request for an outright exemption
from paying the filing fees.  Another judge later dismissed the
case for failure to pay the reduced filing fees within the
extension allowed by the first judge and denied Brandon's motion
for an outright exemption as impliedly denied by the first judge's
decision to reduce the fees. 
          Brandon argues three issues on appeal: (1) the superior
court erred in dismissing the case before the time he had been
allowed to pay the fee had expired; (2) the superior court
improperly denied his motion to waive the filing fee in its
entirety; and (3) the prisoner filing fee statute, AS 09.19.010, is
unconstitutional.  The state concedes error as to the first issue
but disputes Brandon's positions with regard to the other two.  We
agree with the state as to all three issues.  Accordingly, we
reverse the dismissal of this case and remand with instructions
that Brandon be given an opportunity to pay the filing fee ordered
by the superior court.
II.  FACTS AND PROCEEDINGS
          Richard Brandon is a State of Alaska prisoner who was
housed at the Central Arizona Detention Center (CADC) from January
1995 until February 1998 pursuant to a contract CADC had with the
State of Alaska Department of Corrections.  Brandon filed suit
against CADC, its parent corporation, Corrections Corporation of
America, and the State of Alaska Department of Corrections for
surcharges applied to his commissary purchases, allegedly in
violation of the Cleary v. Smith [Fn. 1] Final Settlement
Agreement.  Section V.J.2 of the Settlement Agreement provides that
surcharges on commissary purchases are prohibited.  However,
Brandon's underlying claims as to prohibited surcharges are not at
issue here.  This appeal concerns the dismissal of his complaint
for failure to pay filing fees.
          Brandon submitted his complaint on July 15, 1998.  At the
same time, he submitted a Prisoner Request for Filing Fee
Exemption, and a motion to waive the filing fee.  The motion to
waive the filing fee raised a constitutional challenge to the
prisoner filing fee exemption set forth in AS 09.19.010. [Fn. 2] 
          On July 28, 1998 Superior Court Judge Brian C. Shortell
granted Brandon's request for filing fee exemption.  Based on the
financial information submitted by Brandon, the superior court
ordered him to pay a reduced filing fee in the amount of $66.29. 
Judge Shortell allowed Brandon until August 28, 1998 to pay the
fee.  No ruling was made on the motion to waive the filing fee.
          On August 19 Brandon wrote a letter to the judge, asking
the court to consider the letter as a motion for extension of time
to pay the reduced filing fee.  Brandon asked for a sixty to ninety
day extension.  He submitted a proposed order with this motion,
which would have extended the filing fee deadline sixty days.  The
proposed order was not used.  Instead, Judge Shortell turned
Brandon's letter/motion into an order, writing on the letter:
                             Order
                          So Ordered.
                             9/8/98
                        /s/ B. Shortell
                                
Thus, the previously extended deadline for payment of the filing
fees was extended by sixty to ninety additional days, or until
between November 9 [Fn. 3] and December 7, 1998. 
          On November 9, 1998 Superior Court Judge Michael L.
Wolverton [Fn. 4] dismissed Brandon's case, without prejudice, for
lack of payment of the filing fee.  Brandon moved to reinstate the
action on December 1.  He argued that he should have been given
notice and an opportunity to pay the filing fee.  He also pointed
out that his motion to waive the filing fee was still pending.  On
December 28 Judge Wolverton vacated the November 9 order,
concluding that it had been entered prematurely based on Judge
Shortell's order allowing Brandon sixty to ninety days to pay the
fee.  Judge Wolverton concluded that Brandon had actually had until
December 8 to pay.  However, Judge Wolverton went on to conclude
that because no filing fee had been paid as of December 28, the
case still had to be dismissed, without prejudice, for lack of
payment of the filing fee. 
          On January 2, 1999 Brandon filed another letter/motion in
which he asked Judge Wolverton to clarify his rulings.  Brandon
pointed out that the effect of the December 28 order "was less than
fair"because, while it noted that the November order had been
prematurely entered, the December order did not give Brandon a
chance to pay the fee.  Brandon also noted that his motion to waive
the filing fee had never been ruled on. 
          In response to Brandon's questions regarding the status
of his motion to waive the filing fee, Judge Wolverton issued an
order on January 13 in which he concluded that Judge Shortell's
ruling on the reduced filing fee was effectively a denial of
Brandon's motion to waive the filing fee. 
          Brandon appeals the dismissal of his case for failure to
pay the filing fee on three grounds: (1) that the superior court
erred by dismissing his case for failure to pay the filing fee; 
(2) that the superior court improperly denied his motion to waive
the filing fee in its entirety; and (3) that the prisoner filing
fee statute is unconstitutional. 
III. STANDARD OF REVIEW
          "When interpreting the Civil Rules we exercise our
independent judgment, adopting the rule of law that is most
persuasive in light of reason, precedent, and policy.  Similarly,
we review constitutional questions de novo."[Fn. 5]
IV.  DISCUSSION
     A.   Prisoners Are Required To Pay a Filing Fee When
Commencing Litigation Against the State of Alaska.
          Commencing a civil action requires the filing of a
complaint with the court. [Fn. 6]  A fee schedule for filing has
been established for the Alaska Court System. [Fn. 7]  Payment of
the filing fee is required before any civil action or proceeding is
accepted for filing. [Fn. 8]  However, a filing fee is not required
of "any person determined to be indigent under Administrative Rule
10."[Fn. 9]  In order to avoid payment of a filing fee based on a
determination of indigency, the person requesting an exemption must
file an indigency statement on a court form. [Fn. 10]  But the
indigency exemption is not applicable where the person is a
prisoner commencing litigation against the State of Alaska. [Fn.
11]
          A prisoner may not commence litigation against the state
[Fn. 12] unless he or she "has paid full filing fees to the court
. . . except that the court may exempt a prisoner from paying part
of those fees if the court finds exceptional circumstances."[Fn.
13]  A prisoner seeking the filing fee exemption must submit
documents to the court regarding his or her financial situation.
[Fn. 14]  Based on that information, the court determines whether
the requisite exceptional circumstances exist that prevent the
prisoner from paying full filing fees. [Fn. 15]  
          If a prisoner has income or other resources available
that can be applied to the filing fee, then "imprisonment and
indigency do not constitute exceptional circumstances."[Fn. 16] 
The court sets the amount of the exemption based on the average
balance of the prisoner's correctional facility account. [Fn. 17] 
Indeed, even though the prefatory language to the statute speaks of
the court's power only to "exempt a prisoner from paying part of
[the] fees,"[Fn. 18] the statute actually allows exemption from
paying any fee if the prisoner's account is small enough. [Fn. 19] 
The court order setting out the filing fee must provide notice that
the action will not be accepted for filing if the filing fee is not
paid within thirty days, or the time set by the court. [Fn. 20] 
The prisoner's filing and supporting documents may not be accepted
by the court until the fee is paid. [Fn. 21]
          As a prisoner commencing civil litigation against the
State of Alaska, Brandon was required to follow the statutory
provisions for filing fees for prisoner litigation against the
state.
     B.   The Superior Court Erred When It Dismissed Brandon's Case
for Failure to Pay the Filing Fee.

          As previously noted, Brandon's motion for an extension of
time to pay the filing fee was turned into an order by Judge
Shortell.  That order was ambiguous because it did not set a
specific date by which the filing fee was to be paid.  Instead, the
order incorporated Brandon's request that he be given an additional
sixty to ninety days to pay.  This order effectively allowed
Brandon a ninety-day extension of time, resulting in a due date for
the filing fee of December 7, 1998.  
          The state concedes that it was error for the superior
court to dismiss Brandon's case on November 9 because dismissal was
premature.  We agree. 
          On December 28, 1998 Judge Wolverton properly vacated the
November 9 order as premature.  However, he concluded that
Brandon's case should still be dismissed because he had not paid
the filing fee by the end of December.  This was error.  After the
entry of the dismissal order on November 9, there was no reason to
expect Brandon to pay the filing fee for a dismissed case, even
though he filed a motion to reinstate the action.  After the court
vacated the November 9 order, it should have given Brandon a new
due date for the filing fee. 
     C.   Judge Shortell Implicitly Ruled on Brandon's Motion to
Waive the Filing Fee.
          In response to the December 28 order, Brandon inquired
about the status of his motion to waive the filing fee.  Judge
Wolverton then issued an order in which he concluded that Judge
Shortell's order requiring Brandon to pay a reduced filing fee was
"a denial of plaintiff's motion for a waiver of the filing fee in
its entirety."
          This court has concluded in other cases that a ruling on
one motion is an implicit denial of another contradictory pending
motion. [Fn. 22]  In this case, both of Brandon's motions addressed
the filing fee requirement.  Judge Shortell's ruling to reduce the
filing fee was therefore effectively a denial of Brandon's motion
to waive the filing fee.  Accordingly, Judge Wolverton was correct
in ruling that Judge Shortell had effectively denied Brandon's
motion for a waiver of the entire filing fee. 
     D.   Brandon Has Not Shown that the Prisoner Filing Fee
Statute Is Unconstitutional.
          Brandon argues that the provisions for prisoner exemption
from filing fees in AS 09.19.010 are unconstitutional because the
statute violates Alaska's Equal Protection clause, [Fn. 23] article
I, section 11 of the Alaska Constitution, [Fn. 24] and "the
analogous provisions of the Constitution of the United States." He
does not contend that he lacks the resources to pay the reduced
filing fee.
          The state contends that AS 09.19.010 was enacted as part
of a nationwide trend regarding partial filing fees for prisoners. 
The state argues that the legislative goal of deterring frivolous
prisoner litigation is legitimate, that this court's holding in
Mathis v. Sauser [Fn. 25] does not serve to invalidate the prisoner
filing fee statute, and that there is no equal protection
violation. 
          When a constitutional challenge to a statute is raised,
the party bringing the challenge must demonstrate the
constitutional violation; constitutionality is presumed, and doubts
are resolved in favor of constitutionality. [Fn. 26]  The party
attacking a statute must show there is no constitutional basis to
support it. [Fn. 27]  This court presumes that the legislature
sought to act within constitutional limits. [Fn. 28] 
          For the reasons discussed below, we conclude that Brandon
has not met his burden to show that the statute is
unconstitutional.
          1.   AS 09.19.010 does not violate equal protection.
          Brandon argues that: (1) the prisoner filing fee
exemption statute singles out prisoners for different treatment for
filing fees, (2) the holding of Mathis requires the conclusion that
AS 09.19.010 is unconstitutional, (3) the statute was enacted with
an unconstitutional motivation, and (4) the statute creates state
immunity because prisoners are entitled only to as much justice as
they can afford.  We disagree on all points.
               a.   Indigent prisoners and indigent non-prisoners
are not similarly situated.
          "Amendment XIV, section 1 of the United States
Constitution and Article I, section 1 of the Alaska Constitution
guarantee . . . equal protection under the law.  These clauses,
however, require equal treatment only for those who are similarly
situated."[Fn. 29]  The state argues that Brandon's claim that the
prisoner filing fee statute singles out prisoners for different
treatment is without merit because indigent prisoners and indigent
non-prisoners are not similarly situated. 
          As the court of appeals noted in George v. State, "the
circumstances of an indigent prisoner are different from the
circumstances of an indigent non-prisoner."[Fn. 30]  Indigent
prisoners  do not have to pay rent, buy groceries, or hold down a
job; and their basic needs are met by the state. [Fn. 31]  A
prisoner filing a civil action against the state need not worry
that payment of the filing fee means that the rent will not be paid
or that groceries cannot be purchased.  In Tucker v. Branker, the
District of Columbia Circuit Court noted that the prison system is
"constitutionally bound to provide . . . its prisoner . . . with
the necessities of life"and then held that because the prisoner is
"not forced to choose between the necessities of life and his
lawsuit . . . the [prisoner] filing-fee provision . . . does not
unconstitutionally impinge upon his right of access to the courts."
[Fn. 32]  We agree with this rationale.  The choices of an indigent
non-prisoner are between filing suit against the state and being
able to meet basic necessities of life.  The choice an indigent
prisoner faces is between filing suit against the state or engaging
in other activities;  basic life necessities are not jeopardized by
that choice.  Thus, because indigent prisoners are not similarly
situated to indigent non-prisoners, Brandon's equal protection
challenge fails.
               b.   Mathis does not mandate the conclusion that AS
09.19.010 is unconstitutional.
          In Mathis v. Sauser, we considered the claim of an inmate
that in denying a prisoner the right to possess a computer printer,
the Department of Corrections violated due process, violated equal
protection, and denied access to the courts. [Fn. 33]  We reversed
a grant of summary judgment against the inmate, stating that if "a
challenged regulation curtails an inmate's right of access [to the
courts], a reviewing court must determine that the given policy
rationale is legitimate and that there is a sufficiently close
relationship between this articulated rationale and the selected
means of achieving it."[Fn. 34]  We ruled that summary judgment
was inappropriate because an impermissible motive on the part of
those enacting a regulation would render the regulation improper,
and the prison administration's decision, that a restriction on
printer access was needed to curtail frivolous prisoner litigation,
raised a genuine issue of material fact. [Fn. 35]
          Less than two months after the Mathis decision, the
Alaska Court of Appeals decided George v. State, in which it
specifically addressed the constitutionality of the statute at
issue in this case, AS 09.19.010. [Fn. 36]  In George, an inmate
challenged the constitutionality of the filing fee provisions,
arguing that he should be able to proceed under the filing fee
provisions for indigent persons. [Fn. 37]  The court of appeals
concluded that the statute was not unconstitutionally vague because
it provided a flexible approach similar to that found in the
statutes concerning eligibility for appointed counsel. [Fn. 38] 
The George court also concluded that the statute did not violate
equal protection because indigent prisoners pursuing litigation
against the state are not similarly situated with indigent non-
prisoners pursuing litigation against the state. [Fn. 39]
          In this case, Brandon argues that our decision in Mathis
v. Sauser compels us to overrule the court of appeals's conclusion
in George v. State that AS 09.19.010 is constitutional.  Brandon
contends that the statute is unconstitutional because its enactment
involved an impermissible motivation.  The state contends that
Brandon misconstrues Mathis as concluding that only the courts can
"concern themselves with the problem of frivolous or unmeritorious
litigation." The state points out that it is constitutionally
permissible for the legislature to amend court rules, provided it
is done by a two-thirds vote. [Fn. 40]  The state argues that this
court's holding in Mathis should not be applicable to legislative
branch actions. 
          We agree with the state that Mathis does not require the
conclusion that AS 09.19.010 is unconstitutional and that George
must be overruled.  In Mathis, prison officials implemented a
challenged policy; here, a legislative enactment is in question. 
Our jurisprudence makes clear that we give substantial deference to
legislative enactments in determining constitutionality. [Fn. 41] 
In Mathis, the lower court granted summary judgment to the state
even though a genuine issue of material fact was in dispute; here,
the issue is one of pure law.  Mathis by no means governs the
outcome in this case.
               c.   AS 09.19.010 was not enacted for an
unconstitutional purpose.
          Brandon claims that the publicly stated purpose of AS
09.19.010 (to reduce frivolous litigation by prisoners against the
state) both singles out prisoners for different treatment and is
based on improper motivation that renders the statute
unconstitutional under Mathis because it impermissibly restricts
access to the courts.  We disagree.  As the Ninth Circuit Court of
Appeals stated in Rodriguez v. Cook, equal protection under the
Fifth and Fourteenth Amendments of the federal constitution "is not
a source of substantive rights or liberties, but rather a right to
be free from invidious discrimination in statutory classifications
and other governmental activity."[Fn. 42]  The purpose behind the
prisoner filing fee statute does not constitute invidious
discrimination, nor does the statute unconstitutionally restrict
access to the courts.
          Where a claimant challenges the constitutionality of a
provision that allegedly impairs a prisoner's access to the court,
the analysis is "conceptually similar . . . to constitutional
challenges in the equal protection and due process contexts."[Fn.
43]  The level of scrutiny applied under the federal test depends
on whether the legislation in question "discriminates against a
suspect class or infringes upon a fundamental right."[Fn. 44] 
Federal courts reviewing prisoner filing fee requirements have
applied rational basis review. [Fn. 45]
          Unlike the federal equal protection analysis, we apply "a
sliding scale, invoking closer scrutiny for more important
interests."[Fn. 46]   Under the sliding scale approach, "[t]he
applicable standard of review for a given case is to be determined
by the importance of the individual rights asserted and by the
degree of suspicion with which we view the resulting classification
scheme."[Fn. 47]  Where access to the courts is at issue, we apply
a more heightened review than rational basis: the more onerous the
burden on access, the higher the scrutiny. [Fn. 48]  Here, because
the burden on access is not overly onerous, we apply an
intermediate level of review.
          "An inmate's right to be free of state interference with
his right of access to the court system is not absolute."[Fn. 49] 
As long as a statute does not impermissibly interfere with, or
burden, an inmate's right of access to the court and is
sufficiently related to a legitimate government interest, it is
constitutional. [Fn. 50]
          Brandon supports his claim of impermissible motive --
denying access to the courts -- with the court of appeals's
discussion of the legislative history and intent in George v.
State.  He contends that the following statement in the governor's
transmittal letter (regarding the bill that ultimately became AS
09.19), as quoted in George, is a "publicly stated purpose"that
indicates an intent to "curtail access to the courts."
          This bill is intended to ensure that offenders
[desist from] endless "recreational"litigation. . . . 
               . . . Frivolous litigation filed by
prisoners misallocates resources of the judiciary, the Department
of Law, the Public Defender's Office, the Office of Public
Advocacy, the Department of Corrections, and the public.[ [Fn. 51]]
Brandon then interprets Mathis as requiring close scrutiny of the
rationale behind the legislation to ensure that the rationale and
stated purpose are not subterfuge for an impermissible motive.  But
he does not claim that subterfuge exists in this case; rather, he
concludes that the governor's transmittal letter quoted in George
is itself a publicly stated unconstitutional purpose. 
          However, Brandon does not quote all of the relevant
language from the governor's transmittal letter:
          I am transmitting a bill that addresses many
of the problems arising from prisoner litigation, sentence appeals,
and frivolous or extremely tardy post-conviction relief motions. 
This bill is intended to ensure that offenders focus their
attention on their rehabilitation and reformation, rather than on
endless "recreational"litigation.

          The bill is also intended to promote the
finality of convictions, preserve the sanctity of jury verdicts,
minimize the litigation of stale claims, and prevent the
unjustified dismissal of a criminal case when reprosecution is not
possible.  Frivolous litigation filed by prisoners misallocates
resources of the judiciary, the Department of Law, the Public
Defender's Office, the Office of Public Advocacy, the Department of
Corrections, and the public. [Section 1] . . . relate[s] to
prisoner litigation. [The section is] designed to reduce the number
of frivolous suits filed by prisoners that involve the state, its
employees, and former employees.  This prisoner litigation is
preventing the state and the court from giving adequate attention
to legitimate lawsuits.

          Sections 1, 15, and 17 of the bill require
prisoners to pay filing fees for civil proceedings according to
their ability to pay. [Fn. 52]
The governor's letter does not indicate an impermissible intent to
curtail prisoner access to the court.  The stated purpose is
legitimate:  reducing frivolous prisoner litigation, and requiring
prisoners who file civil actions against the state to pay filing
fees according to their ability to pay.
          We have stated that "even when state officials deem a
prisoner's pro se legal activities frivolous, the Constitution of
Alaska precludes any action aimed at impeding an inmate's access to
the courts."[Fn. 53]  However, the legislation in question here
does not impede access to the courts -- it requires that the inmate
pay some part of the administrative cost incurred in some civil
suits against the state, based on the prisoner's ability to pay, in
order to reduce unnecessary burdens on the courts and public
resources.  Extensions of time may be granted in order to give a
prisoner the opportunity to pay.  And if the prisoner's account
balance is low enough, he or she may be required to pay very
little, or nothing.  This approach accounts for the cost to the
judicial system, and to the public, for prisoner civil litigation
against the state without imposing an undue burden on prisoners.
          Furthermore, the justifications for the fee survive close
scrutiny for legitimacy.  The discussion in George regarding the
background of prisoner filing fees is useful here.  Congress
enacted the Prisoner Litigation Reform Act (PLRA) because it
concluded that "the effectiveness of the federal judiciary was
being compromised by a flood of prisoner litigation"because it was
"easy and essentially costless for prisoners to pursue meritless
claims."[Fn. 54]  Congress wanted to "require prisoners to pay a
very small share of the large burden they place on the Federal
judicial system."[Fn. 55]  The provisions of AS 09.19.010 require
the prisoner contemplating certain forms of litigation against the
state to consider whether it is worth the cost, just as other
litigants must.  But as the George court noted, the statute "does
not require prisoners to pay money they do not have; instead it
asks prisoners to set spending priorities."[Fn. 56]  More
importantly, as the state has pointed out, the filing fee statute
in question is not applicable to criminal cases or direct appeals
from criminal cases, nor does it apply to litigation that is not
against the state. [Fn. 57]  And Alaska's prisoner filing fee
provisions are far more advantageous to Alaska prisoners than the
comparable federal requirement that the full filing fee be paid, in
installments if necessary. [Fn. 58]  We conclude that the sliding
scale fee payment system implemented by AS 09.19.010 does not
impede prisoner access to the courts.
          "The Supreme Court has never recognized an 'unlimited
rule that an indigent at all times and in all cases has the right
to relief without the payment of fees.'"[Fn. 59]  In this case,
Brandon does not argue that his access to the court has in fact
been impeded because he is indigent or can not pay the filing fee. 
He merely argues that prisoners should not be treated differently. 
But the reasoning of the Fourth Circuit is persuasive: 
          Requiring prisoners to make economic decisions
about filing lawsuits does not deny access to the courts; it merely
places the indigent prisoner in a position similar to that faced by
those whose basic costs of living are not paid by the state.  Those
living outside of prisons cannot file a lawsuit every time they
suffer a real or imagined slight.  Instead, they must weigh the
importance of redress before resorting to the legal system.  If a
prisoner determines that his funds are better spent on other items
rather than filing a civil rights suit, "he has demonstrated an
implied evaluation of that suit"that the courts should be entitled
to honor. [Fn. 60]
          It is true that there is more contact between the state
and its prisoners and thus more likelihood of colorable claims
against the state, than between other citizens and the state, but
prisoners are assured that basic necessities will be provided,
which are not provided to non-prisoners filing suit against the
state.  We conclude that Brandon has not shown that the filing fee
provisions of AS 09.19.010 are onerous or overly burdensome. [Fn.
61]  They are sufficiently related to a legitimate government
objective and do not impinge on a fundamental right, discriminate
against a suspect class, or restrict access to the courts.
               d.   The prisoner filing fee statute does not
create state immunity.
          Brandon claims that the statute creates state immunity
against prisoner litigation.  This claim is without merit.  The
prisoner filing fee provisions do not prevent prisoners from filing
civil actions against the state.  Prisoners are only required to
pay a portion of the costs imposed on the court by the filing of a
lawsuit, based on the average balance of their prisoner account.
[Fn. 62]  As noted above, it could be that the fee is zero.  The
court of appeals stated in George, "federal courts have unanimously
concluded that the filing fee requirements placed on prisoners
. . . do not violate equal protection. . . .  'There is nothing
unreasonable in requiring a prisoner . . . to make some
contribution, however minimal.'"[Fn. 63]  That conclusion makes
sense.  Requiring a filing fee payment based on ability to pay for
specific kinds of civil litigation against the state does not
unconstitutionally restrict access to the courts or create a state
immunity; it requires that prisoners assess the claims they seek to
litigate and pay fees according to their ability. 
          2.   Brandon has waived his argument that AS 09.19.010
violates Alaska Constitution art. I, sec. 11.
          Brandon briefly claims in a footnote that the prisoner
filing fee statute violates article I, sections 1 and 11 of the
Alaska Constitution.  He did not raise this claim to the court
below.  A party may not raise an issue for the first time on
appeal. [Fn. 64]  And cursory treatment of an issue is considered
by this court to be waiver of that issue. [Fn. 65]  This claim is
thus waived.  And as the state contends, the argument is meritless
because this section of the Alaska Constitution deals with the
rights of the accused in a criminal prosecution and is thus not
applicable to this case.
V.   CONCLUSION
          Brandon has not shown that the prisoner filing fee
provisions of AS 09.19.010 for civil actions against the state are
unconstitutional.  However, because the superior court erred by
dismissing Brandon's claim without giving him an opportunity to pay
the reduced filing fee set by Judge Shortell, this matter is
REMANDED with instructions to reinstate the claim and allow Brandon
the opportunity to pay the filing fee.


                            FOOTNOTES


Footnote 1:

          No. 3AN-81-5274 Ci. (Alaska Super., September 21, 1990).


Footnote 2:

          AS 09.19.010 provides that 

               (a) A prisoner may not commence
litigation against the state unless the prisoner has paid full
filing fees to the court or is a claimant under AS 23.20, except
that the court may exempt a prisoner from paying part of those fees
if the court finds exceptional circumstances as described in this
section.
               (b) To apply for a filing fee exemption,
a prisoner shall submit to the court
                    (1) an affidavit that clearly
discloses that the person is a prisoner and that sets out
                         (A) the prisoner's complete
financial situation, including the prisoner's income, money in
financial accounts, assets, and court-ordered payments;
                         (B) the circumstances that
prevent the prisoner from paying full filing fees;  and
                         (C) the nature of the action or
appeal and specific facts that would, if proven, state a claim on
which relief can be granted or entitle the prisoner to reversal on
appeal;
                    (2) a certified copy of the
prisoner's account statement from the correctional facility in
which the prisoner is being or has been held for the six-month
period preceding the submission of the application;  and
                    (3) other documentation or financial
information as the court may require.
               (c) Based on the submission under (b) of
this section, the court may grant an exemption from part of the
applicable filing fees if the court finds that exceptional
circumstances prevent the prisoner from paying full filing fees. 
Imprisonment and indigency do not constitute exceptional
circumstances if the prisoner has available income or resources
that can be applied to the filing fee.
               (d) If the court orders an exemption
under (c) of this section, the court shall determine the amount of
the exemption and set a filing fee to be paid by the prisoner.  In
setting the fee, the court, at a minimum, shall require the
prisoner to pay filing fees equal to 20 percent of the larger of
the average monthly deposits made to the prisoner's 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.
               (e) The court shall mail or otherwise
serve its order under (d) of this section on the prisoner.  Along
with its order, the court shall give written notice that the case
or appeal will not be accepted for filing if payment of a filing
fee is not made within 30 days after the date of distribution of
the order, unless the time for payment is extended by the court. 
If timely payment is not made, the court may not accept any filing
in the case or appeal.  If payment is made, the prisoner's filing
and supporting documents shall be accepted for filing with the
court. 


Footnote 3:

     Sixty days after September 8 is November 7.  Because November
7, 1998 was a Saturday, a sixty-day extension would have created a
due date of November 9.


Footnote 4:

     The case was reassigned to Judge Wolverton in October.


Footnote 5:

     Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999)
(footnotes omitted).


Footnote 6:

     See Alaska R. Civ. P. 3(a).


Footnote 7:

     See Alaska R. Admin. P. 9.


Footnote 8:

     See Alaska R. Admin. P. 9(f)(3).


Footnote 9:

     Alaska R. Admin. P. 9(f)(1).


Footnote 10:

     See Alaska R. Admin. P. 10(b).


Footnote 11:

     See Alaska R. Admin. P. 10(e).


Footnote 12:

     AS 09.19.100 defines "Litigation against the state"as:
 
                    (1) . . . a civil action or an
appeal from a civil action or from the final decision of an
administrative agency, a petition for review, a petition for
hearing, an original application for relief, or another action
filed under the Alaska Rules of Appellate Procedure that

                         . . . .

                         (B) is related to a person's
status or treatment as a prisoner . . ., or to an alleged violation
of the person's constitutional rights.


Footnote 13:

     AS 09.19.010(a).


Footnote 14:

     See AS 09.19.010(b).


Footnote 15:

     See AS 09.19.010(c).


Footnote 16:

     Id.


Footnote 17:

     See AS 09.19.010(d).


Footnote 18:

     See AS 09.19.010(a) (emphasis added).


Footnote 19:

     See AS 09.10.010(d) (prisoner must pay twenty percent of the
greater of average monthly deposits or average balance in
prisoner's account for the previous six months).  Accordingly, a
prisoner with zero balances (or balances less than five cents) is
not required to pay any fee.


Footnote 20:

     AS 09.19.010(e).


Footnote 21:

     Id.


Footnote 22:

     See, e.g., Parsons v. Marathon Oil Co., 960 P.2d 615, 618
(Alaska 1998) (concluding that grant of summary judgment implicitly
denied motion to compel depositions and to reschedule briefing);
LeDoux v. Kodiak Island Borough, 827 P.2d 1121, 1123 (Alaska 1992)
(concluding that trial court implicitly denied LeDouxs' motion to
stay by granting Borough's summary judgment motion). 


Footnote 23:

     Alaska Const. art. I, sec. 1 provides: 

          This constitution is dedicated to the principle that
all persons have a natural right to life, liberty, the pursuit of
happiness, and the enjoyment of the rewards of their own industry;
that all persons are equal and entitled to equal rights,
opportunities, and protection under the law; and that all persons
have corresponding obligations to the people and to the State.


Footnote 24:

     Alaska Const. art. I, sec. 11 provides in part: 

          In all criminal prosecutions, the accused shall have
the right to a speedy and public trial . . . .  The accused is
entitled to be informed of the nature and cause of the accusation
. . . and to have the assistance of counsel for his defense.


Footnote 25:

     942 P.2d 1117 (Alaska 1997).


Footnote 26:

     See Baxley v. State, 958 P.2d 422, 428 (Alaska 1998).


Footnote 27:

     See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 401 (Alaska 1995) (quoting Regan v. Taxation with
Representation of Washington, 461 U.S. 540, 547-48 (1983)).


Footnote 28:

          See Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978);
see also State v. Rice, 626 P.2d 104, 108 (Alaska 1981).


Footnote 29:

     Rutter v. State, 963 P.2d 1007, 1013 (Alaska 1998) (internal
quotation marks and citations omitted); see also City of Cleburne
v. Cleburn Living Ctr., 473 U.S. 432, 439 (1985).


Footnote 30:

     George v. State, 944 P.2d 1181, 1188 (Alaska App. 1997).


Footnote 31:

     See id. (quoting Roller v. Gunn, 107 F.3d 227, 234 (4th Cir.
1997) ("Prisoners . . . have their basic material needs provided at
state expense . . . .  They often have free time on their hands
that other litigants do not possess.  As a result, the federal
courts have observed that prisoner litigation has assumed something
of the nature of a 'recreational activity.'  Whether recreational
or not, there has been a far greater opportunity for abuse of the
federal judicial system in the prison setting.") (internal
citations omitted)).


Footnote 32:

     142 F.3d 1294, 1298 (D.C. Cir. 1998).


Footnote 33:

     Mathis, 942 P.2d at 1119-20.


Footnote 34:

     Id. at 1121-22.


Footnote 35:

     See id. at 1122-23.


Footnote 36:

     George, 944 P.2d at 1182.


Footnote 37:

     Id.


Footnote 38:

     See id. at 1184.


Footnote 39:

     Id. at 1189.


Footnote 40:

     Brandon does not contest the validity of AS 09.19.010 as a
court rule.  We note that AS 09.19.010 was properly enacted by more
than the constitutionally required two-thirds vote of the members
elected to each house.  See Alaska Const. Art. IV, sec. 15; see
also
Ch. 79, sec. 1, SLA 1995; 1995 House Journal 1703 (passed:  Yeas
39,
Nays 0, Absent 1); 1995 Senate Journal 1815 (passed: Yeas 19, Nays
1); Ch. 95, sec. 1 SLA 1998; 1998 House Journal 3523 (amendment
passed
unanimously); 1998 Senate Journal 3939 (amendment passed
unanimously).


Footnote 41:

     See supra notes 27-28.


Footnote 42:

     169 F.3d 1176, 1179 (9th Cir. 1999) (quoting Harris v. McRae,
448 U.S. 297, 322 (1980)) (holding that state prison rule limiting
amount of free postage available to prisoners did not violate equal
protection rights because it was rationally related to a legitimate
government purpose).


Footnote 43:

     Mathis, 942 P.2d at 1121 n.8.


Footnote 44:

     Rodriguez, 169 F.3d at 1179 (citing Nordlinger v. Hahn, 505
U.S. 1, 10 (1992)).


Footnote 45:

     See, e.g., Tucker v. Branker, 142 F.3d 1294, 1300 (D.C. Cir.
1998); Rodriguez, 169 F.3d at 1180; Roller v. Gunn, 107 F.3d 227,
233 (4th Cir. 1997).


Footnote 46:

     Schikora v. State, Dep't. of Revenue, 7 P.3d 938, 944 (Alaska
2000).


Footnote 47:

     State, Dep't of Revenue, Permanent Fund Dividend Div. v.
Cosio, 858 P.2d 621, 629 (Alaska 1993) (quoting State v. Ostrosky,
667 P.2d 1184, 1192-93 (Alaska 1983)).


Footnote 48:

     See Mathis, 942 P.2d at 1121.


Footnote 49:

     Id.


Footnote 50:

     See id. at 1121-22.


Footnote 51:

     George, 944 P.2d at 1186 (quoting 1995 House Journal 488-89).


Footnote 52:

     1995 House Journal 488-89 (emphasis added).


Footnote 53:

     Mathis, 942 P.2d at 1122.


Footnote 54:

     George, 944 P.2d at 1187 (citing Roller, 107 F.3d at 230-31).


Footnote 55:

     Id. (quoting 141 Cong. Rec. at S7526 (May 25, 1995) (statement
of Senator Kyl), quoted in Roller, 107 F.3d at 231).


Footnote 56:

     Id. at 1190.


Footnote 57:

     See AS 09.19.010; AS 09.19.100.


Footnote 58:

     See 28 U.S.C. sec. 1915(b)(1), (2) (2000).  We note that no
federal court addressing the constitutionality of the prisoner
filing fee provisions has found this statute to be
unconstitutional.  See Rodriguez v. Cook, 169 F.3d 1176, 1179-81
(9th Cir. 1999) (discussing opinions of various circuit courts).


Footnote 59:

     Roller, 107 F.3d at 231 (quoting United States v. Kras, 409
U.S. 434, 450 (1973)).


Footnote 60:

     Id. at 233 (citation omitted).


Footnote 61:

     Brandon's claim regarding the onerous nature of the paperwork
that must be filled out is without merit.  Anyone seeking relief
from the filing fee requirement is required to submit information
to support the reasons they seek to avoid paying full filing fees. 
See Alaska R. Admin. P. 9(b), 10.  And in the case of prisoner
litigation, the prison officials complete some of the paperwork. 
See AS 09.19.010(b)(2).


Footnote 62:

     See AS 09.19.010.


Footnote 63:

     George, 944 P.2d at 1189 (quoting Evans v. Croom, 650 F.2d
521, 524 (4th Cir. 1981) (footnotes and citations omitted)); see
also Roller, 107 F.3d at 233-34.


Footnote 64:

     See Preblich v. Zorea, 996 P.2d 730, 736 n.17 (Alaska 2000)
(quoting Padgett v. Theus, 484 P.2d 697, 700 (Alaska 1971)
("Ordinarily an issue which was not raised in the trial court will
not be treated on appeal.")).


Footnote 65:

     See Wall v. Stinson, 983 P.2d 736, 739-40 n.8 (Alaska 1999).