Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

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

Hertz v. Carothers (01/11/2008) sp-6221, 174 P3d 243

     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,


) Supreme Court No. S- 12364
Appellant, )
) Superior Court No. 1JU-04-425 CI
v. )
) O P I N I O N
ARMSTRONG; CINDY BETTS; ) No. 6221 January 11, 2008
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.

          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.
          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.
     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
               . . . .

               (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
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
          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.
          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
               . . . .
               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
          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
     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
          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

     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

     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).

This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights