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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. Carothers (01/11/2008) sp-6221
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SIDNEY R. HERTZ, | ) |
| ) Supreme Court No. S- 12364 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-04-425 CI | |
| v. | ) |
| ) O P I N I O N | |
| DAN CAROTHERS; GARLAND | ) |
| ARMSTRONG; CINDY BETTS; | ) No. 6221 January 11, 2008 |
| REBECCA BINGHAM, MD; and | ) |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF CORRECTIONS, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Sidney R. Hertz, pro se,
Seward. Marilyn J. Kamm, Assistant Attorney
General, and Talis J. Colberg, Attorney
General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews and
Eastaugh Justices. [Bryner and Carpeneti,
Justices, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
After State of Alaska prisoner Sidney Hertz lost his
civil rights lawsuit against the state and several of its
employees, the superior court awarded attorneys fees of $3,225
against Hertz. When the state began executing on Hertzs prisoner
trust account, Hertz claimed exemptions under AS 09.38.030,
arguing that his income fell below the statutory level and, in
the alternative, that the statute is invalid. The superior court,
relying on AS 09.38.030s express exception for prisoners, denied
his exemption claim. We affirm. The prisoner exception in AS
09.38.030(f) is valid and the superior court did not abuse its
discretion in holding that this exception applied to Hertz.
II. FACTS AND PROCEEDINGS
In July 2004 Sidney Hertz, an inmate at the Lemon Creek
Correctional Center, sued the Alaska Department of Corrections
(DOC) and several of its employees for alleged civil rights
violations. The superior court ruled for the defendants, awarded
the state Alaska Civil Rule 82 prevailing party attorneys fees of
$3,225, and entered judgment against Hertz for the amount of the
award, plus post-judgment interest. After the state obtained a
writ of execution, executed against Hertzs DOC prisoner trust
account, and recovered $914.32 per AS 09.38.030(f)(5), Hertz
filed an exemption claim, arguing that AS 09.38.030(f)(5) did not
apply to him. The superior court denied Hertzs exemption claim.
It ruled that AS 09.38.030(f)(5) permitted the state to levy on
Hertzs account to recover the award.
In July 2006 Hertz filed this appeal to challenge the
denial of his claimed exemption. In August the state obtained a
second writ of execution and again executed against Hertzs
account, this time for $541.07. Hertz filed a second exemption
claim, which the superior court also denied. Hertz then moved to
amend his points on appeal to add claims that (1) the superior
court lacked jurisdiction to entertain the second writ of
execution, (2) Assistant Attorney General Marilyn Kamm should be
sanctioned for misconduct, and (3) AS 09.38.030(f)(5) is
unconstitutional. We granted his motion to amend.
III. DISCUSSION
A. Standards of Review
We review a grant of attorneys fees for abuse of
discretion.1 The interpretation of a statute and determination
of its constitutionality present legal questions we review de
novo.2 Decisions whether to sanction attorneys are reviewed for
abuse of discretion.3
B. The Superior Court Did Not Err in Denying Hertzs
Request for an Exemption from Execution on the Award of
Attorneys Fees.
Hertz argues that AS 09.38.030(a) and (b) exempt him
from paying attorneys fees because of his low income. Even
though AS 09.38.030(f) contains an express exception denying
exemptions to prisoners, Hertz asserts that the exception is
invalid. The exception is contained in AS 09.38.030(f)(5):
(f) The state may execute on a judgment
awarded to the state or on a judgment of
restitution on behalf of a victim of a crime
or a delinquent act, and an officer or agent
of the state or a state employee, or a former
officer, agent, or employee of the state may
execute on a judgment to that person against
a party to an action who is incarcerated for
a criminal conviction by sending a notice of
levy to the correctional facility in which
the person is incarcerated. All money in an
incarcerated persons account at a
correctional facility is available for
disbursement under a notice of levy under
this subsection, in the following order of
priority:
. . . .
(5) to satisfy other judgments entered
against a prisoner in litigation against the
state; in this paragraph, litigation against
the state has the meaning given in AS
09.19.100.
According to Hertz, repealed statutes AS 33.32.050 and .060
conflict with the inmate exception in AS 09.38.030(f)(5) and
therefore invalidate it. Hertz contends that he is entitled to
rely on these repealed statutes because his rights had vested
when he brought suit, and under AS 01.10.100(a) the repeal of a
statute does not extinguish any rights already accrued under the
repealed statute.
1. Exemption under AS 09.38.030(a), (b)
Hertz argues that AS 09.38.030(a) exempts him from
paying attorneys fees because his income is below that required
for exemption from civil debt, and that AS 09.38.030(b) applies
because he is paid once a month.
Alaska Statute 09.38.030(a) provides that [e]xcept as
provided in (b), (c), (f), and (h) of this section . . . an
individual debtor is entitled to an exemption of the individual
debtors weekly net earnings not to exceed $350. Hertz argues
that because he earns approximately $263 per month, this
exemption applies, and he cannot be made to pay the attorneys
fees award.
Alaska Statute 09.38.030(b) provides that [a]n
individual who does not receive earnings either weekly, semi-
monthly, or monthly is entitled to a maximum exemption for the
aggregate value of cash and other liquid assets available in any
month of $1,400, except as provided in (f) . . . of this section
. . . . Hertz argues that this subsection applies to him because
he is paid once a month.
Both arguments fail. Alaska Statute 09.38.030(a) and
(b) both except persons who are covered by AS 09.38.030(f).4
Alaska Statute 09.38.030(f) provides that [t]he state may execute
on a judgment awarded to the state . . . against a party to an
action who is incarcerated for a criminal conviction . . . to
satisfy other judgments entered against a prisoner in litigation
against the state. Alaska Statute 09.38.030(f) also provides
that [a]ll money in an incarcerated persons account at a
correctional facility is available for disbursement . . . under
this subsection . . . . Hertz is an incarcerated person who lost
his lawsuit against state defendants, the DOC and several DOC
employees. He is therefore within subsection (f) and is
consequently excepted from the exemptions otherwise provided by
AS 09.38.030(a) and (b).5
2. Applicability of repealed statutes AS 33.32.050
and .060
Hertz also argues that the exception in subsection
.030(f) for an incarcerated person is invalid.
He first contends that repealed statutes AS 33.32.050
and .060 conflict with AS 09.38.030(f), rendering it ambiguous
and invalid. He argues that even though AS 33.32.050 and .0606
have been repealed, he has not lost his rights under them because
AS 01.10.100(a) provides that the repeal of a statute does not
release or extinguish any rights accruing or accrued under that
law. The superior court found that Hertz had filed his suit
before the sunset provision for AS 33.32 took effect and
therefore retained his rights under the statute.
We do not need to decide here whether Hertzs rights had
vested under AS 33.32.050 and .060. For our purposes AS
33.30.201 as it now reads is nearly identical to repealed
statutes AS 33.32.050 and .060. Hertzs rights in this case are
the same, whether they are determined under the current statutes
or the repealed statutes.
3. Alaska Statute 09.38.030(f)(5) and repealed
statutes AS 33.32.050 and .060
Even if we assume that the repealed statutes do apply,
we are unpersuaded by Hertzs contention that repealed statute AS
33.32.050(c) conflicts with AS 09.38.030(f)(5). Hertz reasons
that because AS 33.32.050(c) did not expressly provide for
disbursement of prisoner funds to satisfy a judgment for the
state, it conflicts with AS 09.38.030(f)(5), which does expressly
provide for such disbursements. Apparently he believes that
because there is overlap between the two statutes in some areas,7
the absence in AS 33.32.050 of a provision allowing for payment
of judgments to the state means that AS 09.38.030(f)s inclusion
of such a provision is ambiguous and conflicting. But as the
superior courts order explains, the statutes provide a list of
priorities for disbursement of prisoner wages and are not
conflicting.
Alaska Statute 33.32.050, repealed effective July 2005,8
provided for the establishment of a pay plan for prisoners
working in correctional industries and created a tiered system
for disbursing the money. The disbursements began with child
support payments and included payment of civil judgments related
to crime and purchase of personal items such as clothing. Per AS
33.32.050(d), all money remaining after disbursement was to be
retained by the commissioner of corrections for the primary
purpose of being available to the prisoner at the time of
release. Alaska Statute 33.32.060, also repealed effective July
2005,9 provided that [e]xcept for execution by the state under AS
09.38.030(f), only the prisoner payments retained by the
commissioner of corrections under AS 33.32.050(d) are subject to
lien, attachment, garnishment, execution, or similar procedures
to encumber funds or property. Alaska Statute 09.38.030(f)
provides for the disbursement of prisoner funds to satisfy a
civil judgment in favor of the state. In other words, only money
remaining after the enumerated disbursements in AS 33.32.050(c)
would be available for satisfaction of other civil judgments,
except for civil judgments to which the state was a party. In
cases in which the state is a party, AS 09.38.030 applies, and
pre-disbursement wages become available for satisfaction of a
judgment under which the state is a judgment creditor.
The disbursement schemes do not conflict. One set of
priorities for disbursing prisoner wages applies when the state
has not obtained a money judgment against the prisoner (current
AS 33.30.201 and repealed AS 33.32.050 and .060); another set
applies when the state obtains a money judgment against the
prisoner (AS 09.38.030(f)). Repealed statute AS 33.32.060 and
current statute AS 33.30.201 both specifically refer to AS
09.38.030(f). As the superior court noted, it appears that the
legislature intended to make it easier for the state, but not
private parties, to collect money judgments from prisoners.
Because repealed statutes AS 33.32.050 and .060 (even
if they do apply) do not conflict with AS 09.38.030(f), and
because the superior court did not err in allowing execution on
Hertzs account under AS 09.38.030(f)(5), it was not error to
permit execution to recover on the attorneys fees award.
4. Constitutional arguments
Hertz contends that AS 09.38.030(f) is unconstitutional
because: (1) it has a chilling effect on his First Amendment
rights, and (2) it violates equal protection by treating a group
of citizens (prisoners) differently.
In referring to First Amendment rights, Hertz appears
to be arguing that AS 09.38.030(f) discourages inmate litigation.
This is true and is in fact one of the stated purposes of the
statute. Both the superior courts order and the states brief
refer to then-Governor Tony Knowless transmittal letter
accompanying House Bill (H.B.) 201, the bill that produced AS
09.38.030(f). In his letter Governor Knowles stated that H.B.
201
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.
. . . .
Sections 1-5 . . . relate to prisoner
litigation. These sections are 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.[10]
In Brandon v. Corrections Corp. of America we held that
a related statute, also enacted as part of H.B. 201, that
required a prisoner to pay a portion of the filing fee when
commencing litigation did not violate the First Amendment or the
equal protection clause.11 We addressed whether Governor Knowless
stated purpose for the enactment of H.B. 201 was unconstitutional
and held that it was not.12 Stating that [a]n inmates right to
be free of state interference with his right of access to the
court system is not absolute, we explained that a statute is
constitutional if it does not impermissibly interfere with, or
burden, an inmates right of access to the court and is
sufficiently related to a legitimate government interest.13 We
held that Governor Knowless 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.14 Furthermore, the statute in question there did not
impede access to the courts it require[d] that the inmate pay
some part of the administrative cost incurred in some civil suits
against the state, based on the prisoners ability to pay, in
order to reduce unnecessary burdens on the courts and public
resources.15
In Brandon we were addressing the filing fee provision
of H.B. 201 codified as AS 09.19.010, not the provision relating
to payment of civil judgments at issue here. But the same
considerations apply. The filing fee provision and AS
09.38.030(f) were both enacted to discourage frivolous prisoner
litigation, and both do so by requiring prisoners to pay a
portion of the costs incurred in any litigation they bring.
Hertzs equal protection argument also fails. He argues
that AS 09.38.030(f)(5) is unconstitutional because it applies
only to a select group of Alaskan citizens, Alaska prisoners.
But in Brandon we rejected just such an argument, concluding that
indigent prisoners and indigent non-prisoners are not similarly
situated.16 We noted:
Indigent prisoners do not have to pay rent,
buy groceries, or hold down a job; and their
basic needs are met by the state. 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.[17]
This rationale applies equally to AS 09.38.030(f)(5). We
therefore hold that AS 09.38.030(f)(5) does not violate equal
protection.
C. The Superior Court Had Jurisdiction To Issue a Second
Writ of Execution After Hertz Commenced this Appeal.
Hertz argues that Alaska Appellate Rule 203 divested
the superior court of jurisdiction to issue a second writ of
execution while the order issuing the first writ was on appeal.
He also contends that a court may issue only one writ of
execution per year.
Appellate Rule 203 provides that [t]he supervision and
control of the proceedings on appeal is in the appellate court
from the time the notice of appeal is filed with the clerk of the
appellate courts, except as otherwise provided in these rules.
Appellate Rule 204(d) provides that [w]henever in a civil case an
appellant entitled thereto desires a stay on appeal, the
appellant may present to the superior court for its approval a
supersedeas bond which shall have such surety or sureties as the
court requires. Alaska Civil Rule 62(d) further provides that
[w]hen an appeal is taken or review sought
the appellant or petitioner by giving a
supersedeas bond may obtain a stay subject to
the exceptions contained in subdivision (a)
of this rule. The bond may be given at or
after the time of filing the notice of appeal
or of filing the petition for review, as the
case may be. The stay is effective when the
supersedeas bond is approved by the court.
Hertz does not claim that he posted a supersedeas bond,
and he did not seek an exemption from Alaska Civil Rule 62(d).
Notwithstanding the appeal, absent a stay of execution, the
superior court retained jurisdiction to enforce its judgment by
issuing writs of execution.
Furthermore, his claim that only one writ of execution
may be issued per year is incorrect. There is no such
limitation. Alaska Civil Rule 69(e) does provide that only one
writ of execution and one writ of execution for garnishment of
earnings may be outstanding at any one time. Here the superior
court issued its first writ on February 1, 2006, and upon
execution the DOC paid the first levy on February 7. There was
consequently no outstanding writ of execution when the court
issued its second writ in August 2006. The superior court
therefore was not barred from issuing the second writ.
E. There Was No Misconduct by the States Attorney.
Hertz asserts that Assistant Attorney General Marilyn
Kamm should be sanctioned $1,000 under Professional Conduct Rule
3.3 for misconduct because he claims that she knew that (1) A.S.
09.38.030(f)(5) does not apply in this cause of action, and (2)
the superior court did not have the authority to execute a second
writ of execution.
These claims of attorney misconduct are completely
without merit. There is no evidence whatsoever that Kamm acted
inappropriately. Her efforts to collect on the judgment were
consistent with AS 09.38.030(f)(5). As we have seen, that
statute is valid and applicable here. Her efforts to obtain and
execute on a second writ were also valid. The superior court
therefore appropriately declined to sanction Kamm for attorney
misconduct.
IV. CONCLUSION
We AFFIRM the judgment below.
_______________________________
1 Marsingill v. OMalley, 128 P.3d 151, 156 (Alaska 2006).
2 C.J. v. State, Dept of Corr., 151 P.3d 373, 377 (Alaska
2006).
3 In re Schmidt, 114 P.3d 816, 819 (Alaska 2005).
4 AS 09.38.030(a) (Except as provided in . . .(f) . . .
of this section . . . .); (b) ([E]xcept as provided in . . .(f) .
. . of this section . . . . ).
5 AS 09.38.030(b) would not apply in any event. It
applies to [a]n individual who does not receive earnings . . .
monthly, and Hertz himself states that he is paid once a month.
6 AS 33.32.050 and .060 provided a system of payment for
prisoners working in correctional industries. By statute enacted
in 1997, sections .050 and .060 were prospectively repealed
effective July 1, 2005. Ch. 49, 14, SLA 1997. In 2006 the
legislature incorporated portions of former AS 33.32.050 and .060
into an existing statute, AS 33.30.201. Ch. 58, 6, 7, SLA 2006.
7 For example, both statutes allow for disbursement of
prisoner wages to support prisoners dependents. See AS
33.32.050(c)(1); AS 09.38.030(f)(1).
8 Ch. 49, 14, SLA 1997.
9 Ch. 49, 14, SLA 1997.
10 1995 House Journal 488-89.
11 Brandon v. Corr. Corp. of Am., 28 P.3d 269, 277 (Alaska
2001).
12 Id. at 277-79.
13 Id. at 277 (citation omitted).
14 Id. at 278.
15 Id.
16 See id. at 275-76.
17 Id. at 275 (citation omitted).
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