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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. State, Dept. of Corrections (1/8/2010) sp-6449

Hertz v. State, Dept. of Corrections (1/8/2010) sp-6449, 230 P3d 663

     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- 12842
Appellant, )
) Superior Court No.
v. ) 3AN-81-05274 CI
) O P I N I O N
Appellee.1 ) No. 6449 - January 8, 2010
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael Spaan, Judge.

          Appearances: Sidney R. Hertz, pro se, Seward.
          John  K.  Bodick, Assistant Attorney General,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau for Appellees.

          Before:   Matthews, Eastaugh, Carpeneti,  and
          Winfree, Justices. [Fabe, Chief Justice,  not

          CARPENETI, Justice.

          I.   A pro se prisoner moved for an injunction against the
Alaska  Department of Corrections ordering the department to  pay
gate  money to all prisoners upon release as provided for in  the
1990 Final Settlement Agreement (FSA) in the Cleary case, a class
action by inmates regarding prison conditions.  After passage  of
the  Alaska  Prison Litigation Reform Act (APLRA)  in  1999,  the
department  stopped issuing gate money.  The inmate  argues  that
the  department is still bound by the FSAs gate money  provisions
          regardless of APLRA.  The inmate also requested court-appointed
counsel in order to represent the Cleary class.
          The  superior  court  denied  the  inmates  motion  for
reinstatement of gate money, and failed to respond to the inmates
request  for counsel.  Because APLRA bars  the inmates claim  for
reinstatement of gate money, and because any error in the  courts
failure  to rule on the motion for appointed counsel was harmless
since the law clearly does not entitle the inmate to counsel,  we
affirm the decision of the superior court.
          Prisoner Sidney Hertz  has previously come before  this
court  regarding  the  FSA.2  Hertz v. Cleary3  gives  a  helpful
description of the Cleary settlement:
          The  Cleary  litigation began in  1981  as  a
          Civil  Rule  23 class action challenging  the
          conditions of Alaskas correctional facilities
          .  . . .  In January 1983, the superior court
          approved   the  parties  partial   settlement
          agreement. . . .
          In   December   1987,  the   superior   court
          appointed  a standing compliance  monitor  to
          oversee    compliance   with   the    partial
          settlement    agreement.    Various    issues
          concerning compliance with and interpretation
          of  the  partial  settlement  agreement  were
          litigated in the superior court through 1989,
          when  efforts at settlement were renewed.  On
          August  1,  1990, the negotiation efforts  of
          the   parties  and  the  standing  compliance
          monitor  culminated  in  the  proposed  Final
          Settlement Agreement (FSA).
          The  proposed  FSA  and an  analysis  of  the
          settlement  by the attorney representing  the
          class were distributed to all class members .
          .  .  .  [It] was amended to address comments
          from  class members, including comments  from
          Sidney  Hertz . . . . In its approval of  the
          FSA  the  superior court . . . held that  the
          provisions of the FSA were reasonable and  in
          the best interests of the class.[4]
          The  FSA  sets out comprehensive and detailed standards
for correctional facilities and procedures, including a provision
that gate money5 be paid to prisoners at their release.6  The FSA
required the department to implement a program to provide inmates
convicted  of  felonies  who have been released  from  facilities
after  serving  a  sentence and who have not  been  eligible  for
Permanent Fund Dividends, or who have not been able to retain  at
least  $150  of  Permanent Fund Dividends  because  of  mandatory
deductions, with at least $150 of gate money . . . .
          In  1999,  nine  years after the FSA,  the  legislature
passed  the Alaska Prison Litigation Reform Act (APLRA).7   APLRA
limits  the  situations in which prisoners may  seek  prospective
          relief in lawsuits challenging prison conditions.8  Section (a)
provides:  a court may not order prospective relief  in  a  civil
action  with  respect to correctional facility conditions  unless
the court finds that [] the plaintiff has proven a violation of a
state  or  federal  right  .  .  .  .9   It  also  provides  that
prospective relief ordered under a consent decree . . . shall  be
terminated upon the motion of the [department] unless  the  court
finds that there exists a current violation of a state or federal
right and makes the findings required by (a) . . . .10
          Following  passage of APLRA, the department  brought  a
motion  in superior court to terminate the FSA consent decrees.11
The  Cleary prisoner class opposed the departments motion on  the
grounds  that  APLRA was unconstitutional.12  The superior  court
upheld  the statute, but also held that it did not terminate  the
FSA  consent  decrees.13   The  court  found  that  APLRA  merely
terminated prospective relief, and thus was constitutional.14  The
Cleary  class, of which Hertz was a member, did not  appeal  that
superior court decision.
          Shortly    thereafter,   Department   of    Corrections
Commissioner  Marc  Antrim  issued a memorandum  terminating  the
payment of gate money:
          Effective   October  1,  2003,   the   Alaska
          Department  of  Corrections  will  no  longer
          issue  gate  money to felons at the  time  of
          their   release.    While  gate   money   was
          initiated  under  the Cleary,  et  al.  Final
          Settlement  Agreement, the Department  is  no
          longer required to make the payments.

          Payments  of  gate  money  were  specifically
          prohibited  under  22  AAC  05.590  Discharge
          Payments, originally made effective  in  1977
          and  amended  in  1987, which provides:  Upon
          release  of  a prisoner, the department  will
          not provide a discharge payment or gate money
          to the prisoner. Each prisoner is entitled to
          receive  any  work  program compensation  and
          prisoner fund account money due, by check  or
          cash, at the time of release.
          In January 2007 Hertz filed a Complaint for Declaratory
Judgment  and  Injunctive  Relief  For  Non-compliance  with  the
Consent Decree.  Hertz alleged several violations of the FSA.  He
sought,  among other things, a judgment declaring the  department
in  violation  of the FSA for discontinuing gate  money,  and  an
injunction requiring the department to reinstate gate  money  for
all  prisoners, as provided by the FSA.  Hertz purported  to  act
for  the  class  and  filed under the original  Cleary  v.  Smith
caption.   But  the FSA provides that an inmate cannot  represent
the  class  without an attorney or permission from the  court  to
proceed  pro se.15  Although Hertz never requested permission  to
proceed  pro  se,  in April 2007 he moved the superior  court  to
appoint  an attorney for him.  Hertz later wrote to the clerk  of
court requesting a ruling.  The superior court never ruled on his
motion for court-appointed counsel.
          In  May  2007  the Department responded to  Hertzs  FSA
motion,  arguing  that  APLRA barred his  claim  for  gate  money
because he failed to show the Department had violated a state  or
federal  right.  The superior court denied Hertzs motion, holding
that Hertz has . . . failed to state a state or federal right  to
gate   money   as   required  by  [APLRA].    Hertz   moved   for
reconsideration, which the court denied.  Hertz now appeals  that
denial and the courts failure to appoint counsel.
          In  cases involving statutory interpretation, we review
appeals using our independent judgment.16  Under that standard, we
will adopt[] the rule of law that is most persuasive in light  of
precedent,  reason, and policy.17  When previously examining  the
FSA,  we found that the FSAs scope and effect raise questions  of
contract law that [we] review de novo.18
     A.   Hertz Does Not Represent the Cleary Class.
          As  a  preliminary matter, we note that although  Hertz
filed  under  the  original Cleary caption  with  the  intent  of
representing the class, he does not represent the class.  Despite
the  fact that this case has come to us under the original Cleary
heading,  the  superior  court never  gave  Hertz  permission  to
represent the class.
     B.   The Superior Court Did Not Err in Denying Hertzs Motion
          for  Declaratory  and Injunctive Relief  Because  APLRA
          Applies,  Hertz Failed To Prove Violation of a  Federal
          or  State Right, and His Claim Does Not Qualify for  an
         Hertzs  claim  for gate money fails because  he  demands
prospective relief,  he does not allege violation of a  state  or
federal  right,  and  he demands relief of  indefinite  duration.
APLRA declares that a court may not order prospective relief in a
civil  action  with  respect to correctional facility  conditions
unless  the  court  finds  that [] the  plaintiff  has  proven  a
violation  of a state or federal right . . . . 19  To the  extent
that  Hertz  demands relief based on ongoing enforcement  of  the
FSA,  part  (c)  of APLRA provides that a court  shall  terminate
prospective relief ordered under a consent decree upon motion  of
the  department unless the court finds a current violation  of  a
state or federal right.20 The department properly made that motion
in August 2000.
             The   issue   then   is  whether   the   departments
discontinuance  of gate money violates a state or federal  right.
Hertz  argues  that  the FSA is a contract  and  that  he  has  a
contractual  right to gate money.21  The department  argues  that
Hertz  has no state or federal right to gate money on the grounds
that no statute exists creating such a right.  Both contracts and
statutes  can create property rights protected by the Alaska  and
United States constitutions.22  We agree with the department that
Hertz  has no statute-based property right in gate money. As  for
Hertzs  contract-based claim, we conclude that the FSAs  language
does  not  create a property right to prospective enforcement  of
the gate money provision.
          1.   APLRA  applies  because Hertz demands  prospective
          relief,  and  to  the  extent the  claim  is  based  on
               the  FSA,  the department has properly  moved  for
          APLRA  defines prospective relief as all  relief  other
than  compensatory monetary damages.23  Hertz demands declaratory
and  injunctive relief, which fall squarely into this definition.
If  the superior court had granted his motion, he would not  have
gotten  a  compensatory monetary award, but rather a court  order
directing the department to take future action.  Hertz remains  a
prisoner, so any payment of gate money to him would have to  come
in  the  future.   Hertz himself characterizes his  complaint  as
being for declaratory judgment and injunctive relief.  Therefore,
we  conclude  that Hertz requests prospective relief  within  the
meaning of APLRA.24
          Insofar   as   Hertz   demands  continued   prospective
enforcement of the FSA, the superior court effectively terminated
prospective enforcement on the departments motion in 2001.  APLRA
provides  that  the department may move to terminate  prospective
relief ordered under a consent decree.25  The department made that
motion in August 2000.  The superior court granted the motion and
upheld the constitutionality of APLRA.  The superior court  order
specifically  required  that all future  claims  for  prospective
relief under the FSA must show a current violation of a state  or
federal right, as required by APLRA.  The Cleary class, of  which
Hertz  was  a member, did not appeal that order.  In addition  to
the  departments 2000 motion, then-Commissioner Antrim  issued  a
memorandum declaring that the department would resume enforcement
of  22  AAC 05.590, which declares that the department  will  not
issue gate money.
          APLRA applies to Hertzs claim for prospective relief.
          2.   Hertz  has no state or federal right to gate money
               arising either from statute or from contract.
          Having  concluded that APLRA applies, we next  consider
whether  Hertz has shown a violation of a state or federal  right
as  APLRA requires for prospective relief. APLRA defines a  state
or  federal right as arising from the United States Constitution,
the  Constitution of the State of Alaska, or a federal  or  state
statute.26   We read Hertzs statements that he has a  contractual
right  to  gate  money  as alleging that  the  FSA  gives  him  a
protected  property interest in gate money, or in  an  injunction
requiring  the Department to issue gate money.  Both  the  United
States  and  Alaska Constitutions protect property  rights.   The
Supreme Court held in Board of Regents of State Colleges v.  Roth
that  [p]roperty  interests  .  .  .  are  not  created  by   the
Constitution.  Rather they are created and their  dimensions  are
defined  by  existing rules or understandings that stem  from  an
independent source such as state law-rules or understandings that
secure certain benefits and that support claims of entitlement to
those  benefits.27   Alaska  has  adopted  this  same  claims  of
entitlement  test  for property rights protected  by  the  Alaska
Constitution.28  Under this test, property rights can arise  from
both statutes and contracts.29
               a.   Hertz  has  no  statute-based right  to  gate
          The  department correctly points out that no  state  or
federal  statute  provides for gate  money.   In  fact,  a  state
regulation  specifically declares that Alaska  does  not  provide
gate  money.30   Furthermore, federal  courts  have  consistently
declined  to  hold  that  statutes create a  federally  protected
property right in gate money.31  Therefore, Hertz has no claim of
entitlement  to  gate  money  arising  under  state  or   federal
               b.   Hertz  has  no contract-based right  to  gate
          Hertzs main argument is that he has a property right to
gate money arising from the FSA under a contract analysis. Like a
statute,  a  contract can also create property rights  by  giving
rise to a claim of entitlement.32  The department does not address
this  argument.  We conclude after a careful examination  of  its
language  that  the  FSA does not create a  continuing  claim  of
entitlement  to gate money because it grants broad discretion  to
the  trial court to terminate or modify its terms in response  to
changes in law and circumstances.
          We construe consent decrees following normal principles
of contract interpretation:33
          The  goal  of  the court is  to  enforce  the
          reasonable  expectations of the  parties.  In
          determining  the intent of the  parties,  the
          court  looks to the written contract as  well
          as  extrinsic evidence regarding the  parties
          intent at the time the contract was made. The
          parties   expectations   are   assessed    by
          examining  the language used in the contract,
          case  law interpreting similar language,  and
          relevant  extrinsic evidence,  including  the
          subsequent conduct of the parties.[34]
          The   FSA  provides:  The  parties  agree  that  future
questions  regarding the implementation and enforcement  of  this
agreement shall be interpreted in a manner that gives meaning  to
the  intent  expressed  by  the parties  with  consideration  for
changes  to Alaskas adult correctional facilities that may  exist
at  the  time.   Thus,  we turn to the FSA  itself  to  determine
whether  the parties intended to create an indefinite entitlement
to gate money for class members.
          The FSA is a comprehensive document, eighty-eight pages
in  length, giving detailed provisions for all aspects of  prison
life    including   facilities   conditions   and   overcrowding,
operations,  rights and opportunities for inmates, rehabilitation
programs,  discipline, and grievances.  The gate money  provision
at  issue  here  is a short paragraph on page forty-nine.   Pages
seventy-eight  through eighty-four deal with  future  monitoring,
modification and enforcement of the agreement.  Although the gate
money  provision  is  written in absolute terms  (the  Department
shall . . .), the seven-page section on monitoring, modification,
and  enforcement  gives broad discretion to the  trial  court  to
modify   the   agreement  in  the  event  of   changed   law   or
            The FSA specifically provides that in the event of  a
          clear showing of material changes in circumstance or controlling
law,  either  party may move for relief from the FSA decree,  and
that  all  or some provisions of [the FSA may] be vacated  and/or
modified  accordingly.   The FSA further provides  that  such  an
application for relief or modification shall be governed  by  the
principles  of Civil Rule 60(b)(5) and (6).  Alaska  Civil  Rules
60(b)(5)  and (6) give discretion to the trial court. Civil  Rule
60(b)(5) allows a trial court to grant relief from judgment when,
among  other things, it is no longer equitable that the  judgment
should  have prospective application. Civil Rule 60(b)(6)  allows
the  trial  court  to grant relief from judgment  for  any  other
reason justifying relief from the operation of the judgment. Such
justifying  reasons have been found in a variety  of  situations,
including   passage   of   new  applicable   legislation.35    By
specifically  referring  to Rule 60(b)(6),  the  parties  to  the
Cleary  FSA showed their intent that the trial court be  able  to
modify  or  terminate enforcement of all or parts of the  FSA  if
governing law changed substantially.
          Thus,  we conclude that the parties intent was  not  to
guarantee   that  all  provisions  of  the  FSA  would   continue
indefinitely.   Rather,  the parties intended  that  trial  court
enforcement of the FSA would be flexible and responsive to future
changes  in  law  and  circumstances.  Hertz  had  no  legitimate
expectation  that  the  court would never change  or  discontinue
enforcement of the consent decree.
          Furthermore,  Hertz  has  no right  to  an  injunction.
Federal  courts  have consistently refused  to  find  a  property
right  in  prospective enforcement of a consent decree. Like  the
Alaska   Prison   Litigation  Reform  Act,  the  Federal   Prison
Litigation  Reform Act (PLRA) makes prospective relief terminable
unless  the court makes written findings that prospective  relief
[is] necessary to correct a current and ongoing violation of  [a]
Federal  right.36  After passage of PLRA, several federal  courts
addressed  whether PLRA violated due process by taking  protected
property  rights  when  terminating  prospective  enforcement  of
consent  decrees.  These courts consistently  held  that  inmates
have  no  protected  property  rights  in  injunctions  enforcing
consent decrees.37
          To  the  extent  that  Hertz  asserts  that  he  has  a
contractual  right to an injunction against the  department,  the
same  logic applies.  Because the consent decree may be  modified
or  terminated  by  the issuing court, a party never  acquires  a
protected property right to a continuing injunction.38
          3.   Hertzs  claim  does  not  qualify  for  an   APLRA
          Hertz  contends that APLRAs subsection .200(e),  which
grants  courts  the  ability  to grant  prospective  relief  for
certain  aspects of consent decrees, should apply  to  the  gate
money provision of the FSA.
          Subsection .200(e) reads: Notwithstanding (a) of  this
section, in a civil action with respect to correctional facility
conditions,[39] a court may order prospective relief as provided
in  a consent decree without complying with (a) of this section,
provided  the prospective relief does not continue for a  period
          of more than two years unless the court finds and orders that
the   continuation  of  the  relief  is  appropriate  under  the
standards in (c) of this section.  Subsection .200(c), discussed
above,  bars prospective relief unless the court finds violation
of  a  state or federal right.  Part (c), also discussed  above,
makes  prospective  enforcement of  consent  decrees  terminable
unless the court makes the same finding.
          Under  subsection .200(e) the court could require  the
department  to  abide by terms of the FSA for up  to  two  years
without  finding violation of a state or federal  right.40   But
Hertz does not ask for reinstatement of gate money for only  two
years. Because Hertz seeks an injunction lasting longer than two
years, this exception cannot apply to his claim.
          Furthermore,  this  subsection permits  the  court  to
enforce consent decrees, but does not mandate it: the court  may
order prospective relief. . . .41  Even if Hertzs claim met  the
two-year  limit,  the  superior  court  would  still  have   had
discretion to deny it.
     C.     Any Error in the Superior Courts Failure To Rule  on
          Hertzs Motion for Appointment of Counsel Was Harmless.
          Hertz  filed his motion for appointment of  counsel  on
April 8, 2007.  He explains that he filed the motion because,  as
we  stated in Hertz v. Cleary, Hertz may not represent the  class
pro se without court permission.42  The court did not rule on this
motion.  Hertz followed up with a letter to the court on June 24,
2007.   Hertz  wrote: I am requesting some kind of ruling  either
granting  or  denying  my motions so we can move  these  problems
          The  department contends that Hertz failed to  preserve
this argument because he did nothing more to demand a ruling from
the superior court.  The department cites to Millette v. Millette
for  the proposition that litigants, even pro se litigants, waive
appeals of motions if they fail to take action to obtain a ruling
from the trial court.43
          In  Millette,  as  in this case, the  litigant  sent  a
written  request to the court after the court did not rule  on  a
motion.44   The  litigant then participated in a custody  hearing
before  the  court, but failed to raise the issue of  the  motion
until four days into the hearing.45  We held that because he  did
not raise the courts failure to rule until well into the hearing,
the  litigant did not take sufficient action to bring the  motion
to the courts attention, and therefore waived the issue.46
          Millette,  however,  is inapposite.   Unlike  Millette,
where  the  litigant had the attention of the  court  during  his
custody  hearing,  Hertz  took the only  action  that  a  pro  se
prisoner, without a court hearing, could take: He wrote a  letter
alerting the court of his pending motion.  His case did not  come
before  the  court  in  a  hearing.   Hertz  therefore  did  take
sufficient action to notify the court of his pending motion.
          Even  though Hertz did not waive this issue, he is  not
entitled  to  the relief he seeks, namely a remand  back  to  the
trial  court  with directions to appoint either  an  attorney  to
represent the class or as an alternative [appointment of] a Court
monitor  to review Hertzs assertions of non-compliance  with  the
          FSA.  Because the law does not entitle Hertz to court-appointed
counsel, any error by the lower court in failing to rule on  this
motion was harmless.
          Any   right  to  appointed  counsel  for  an   indigent
plaintiff must come from a statute, a rule, or the constitution.47
No  Alaska  statute  or rule gives Hertz the right  to  appointed
counsel  in this situation,48 nor does the Alaska Constitution.49
Finally,  Hertz does not have a due process right to counsel.  We
use  the  federal  balancing test from  Mathews  v.  Eldridge  to
determine  when a plaintiffs due process rights are  violated  by
failure  to  appoint counsel.50  We consider  and  balance  three
          [T]he   private  interest  affected  by   the
          official  action; the risk  of  an  erroneous
          deprivation  of  such  interest  through  the
          procedures  used and the probable  value,  if
          any,  of  additional or substitute procedural
          safeguards;   and  finally,  the  governments
          interest,    including   the    fiscal    and
          administrative  burdens  that  additional  or
          substitute   procedural  requirements   would
          Property    rights,   particularly   purely    monetary
interests,  are  not  particularly compelling  private  interests
under this test.52  Furthermore, although Hertz might have had  a
better  chance of succeeding with a lawyer, the state has  strong
interests in avoiding the high fiscal and administrative  burdens
of  providing  counsel to every inmate wishing to  represent  the
Cleary  class.53   The  balance of  interests  under  Mathews  v.
Eldridge indicates that due process did not require Hertz to have
appointed counsel.
          Because the Alaska Prison Litigation Reform Act applies
to  and  bars Hertzs request for prospective relief, and  because
the  failure to rule on Hertzs motion for appointment of  counsel
was  at most harmless error because the law in that area does not
entitle  Hertz to appointed counsel, the decision of the superior
court is AFFIRMED.

     1     Hertz  filed this case under the caption of  the  1981
class  action Cleary et al. v. Smith et al.   Because he  is  not
authorized to represent the class (see infra Part IV.A), we  have
re-named this case. See Hertz v. State, Dept. of Corr., 869  P.2d
154 (Alaska 1994).

     2     See Hertz v. Cleary, 835 P.2d 438 (Alaska 1992); Hertz
v. State, Dept of Corr., 869 P.2d 154 (Alaska 1994).

     3    Hertz,  835 P.2d 438.

     4    Id. at 439-40.

     5     Gate money refers to  discharge payments [provided] to
prisoners  upon their release.  This gate money was part  of  the
financial  assistance  package intended  to  help  prisoners  re-
establish themselves in the community. Baker v. State,  158  P.3d
836, 838 (Alaska App. 2007).

     6      The  specific  gate  money  provision  takes  up  one
paragraph  in  the eighty-eight page settlement  agreement  (Rec.
006617-006707. Gate money provision Rec. 006668).

     7    AS 09.19.200.

     8    Id.

     9    AS 09.19.200(a).

     10    AS 09.19.200(c).

     11     Cleary  v. Smith, No. 3AN-81-5274 Ci. (Alaska  Super.
July 3, 2001).

     12    Id.

     13    Id.

     14     Id. (This court . . . finds that the APLRA should  be
construed  narrowly  to  affect only the prospective  relief  due
parties  under  the  consent decree and not  the  consent  decree
itself.  .  .  .[T]his  court believes  it  would  pose  a  grave
constitutional question if the Alaska Legislature was  attempting
to  require  the  court to terminate a final order  and  judgment
rather  than  merely  terminate the relief  available  under  the
consent   decree.    As   the   more   difficult   question    of
constitutionality  can  be  avoided  by  construing   the   APLRA
narrowly  to terminate only prospective relief due parties  under
the  consent  decree but not the consent decree  itself,  and  as
this  is  a  reasonable interpretation of the statute, the  court
adopts this interpretation.).

     15     Hertz  v.  State, Dept. of Corr., 869 P.2d  154,  155
(Alaska 1994).

     16     W.  Star Trucks, Inc. v. Big Iron Equip. Serv., Inc.,
101 P.3d 1047, 1048 (Alaska 2004).

     17    Id.

     18    Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).

     19     AS 09.19.200(a). Neither party discusses whether gate
money  is  in  respect  to  a  correctional  facility  condition.
Therefore,  we  assume  that gate money concerns  a  correctional
facility condition without deciding the issue.

     20    AS 09.19.200(c).

      21     Hertz  does  not appear to challenge the  underlying
 constitutionality  of APLRA.  Although his reply  brief  recites
 the  Contracts  Clauses  of both the Alaska  and  United  States
 Constitutions as in support of his argument, he does  not  argue
 the  point.   Furthermore, in his opening brief, Hertz  concedes
 that  APLRA  does not violate the Contract Clause of the  United
 States  or Alaska Constitutions.  Were Hertz to argue  that  the
 APLRA  is  unconstitutional, the doctrine of res judicata  would
 probably  bar that argument.  Hertz was a member of  the  Cleary
 class  when  it  challenged  the  APLRAs  constitutionality   in
 superior  court.  Cleary et al. v. Smith et al., No. 3AN-81-5274
 Ci.  (Alaska Super. July 3, 2001).  The superior court addressed
 the   Contracts   Clauses  of  both  the  Alaska   and   Federal
 Constitutions.   It  upheld the statutes limits  on  prospective
 relief  as  constitutional, and the Cleary class did not  appeal
 that    decision.    Therefore   we   do   not   consider    the
 constitutionality of APLRA here. But the Cleary  class  did  not
 litigate  whether APLRA applies to claims for gate money.  Thus,
 the Cleary class did not raise the claims Hertz raises here, and
 res judicata  does not bar those claims.  See Ferguson v. State,
 816  P.2d 134 (Alaska 1991) (holding inmates challenge  to  drug
 testing  procedures not barred by res judicata based on previous
 Cleary litigation).
      22     See Bd. of Regents of State Colls. v. Roth, 408 U.S.
 564,  578  (1972); Breeden v. City of Nome, 628  P.2d  924,  926
 (Alaska  1981) (discussing statute governing terms of employment
 with  city as well as employees contract with city in  order  to
 determine  whether employee had protected property  interest  in
      23    AS 09.19.200(g)(5).
      24     We note that his claim for prospective relief raises
 different issues than would a claim for breach of contract by  a
 released  prisoner who had been denied gate money. That question
 is not presented here, and we do not address it.
      25    AS 09.19.200(c).
      26    AS 09.19.200(g)(7).
      27    408 U.S. 564, 577 (1972).
      28     Breeden  v. City of Nome, 628 P.2d 924, 926  (Alaska
 1981) (quoting Roth, 408 U.S. at 577).
      29     Bishop v. Wood, 426 U.S. 341, 344 (1976) (A property
 interest . . . can, of course, be created by ordinance, or by  .
 . . contract.); Breeden, 628 P.2d at 926.
      30     See  Baker v. State, 158 P.3d 836, 838 (Alaska  App.
 2007);  see also 22 AAC 05.590 (Upon release of a prisoner,  the
 department  will not provide a discharge payment or  gate  money
 to the prisoner.).
      31     See Webster v. Chevalier, 834 F. Supp. 628 (W.D.N.Y.
 1993)  (holding  that  New  York did  not  violate  inmates  due
 process  rights by changing release policy from a gift  of  gate
 money  from  state  funds to taking gate money  out  of  inmates
 wages);  Ward  v. Stewart, 511 F. Supp. 2d 981,  985  (D.  Ariz.
 2007)  (Arizona  did  not commit an unconstitutional  taking  by
 withholding  gate  money from wages of  inmate  who  faced  life
 imprisonment  and would therefore never see gate  money  because
 even  if  gate  money is considered private property,  prisoners
 forfeited  all right to possess, control, or dispose of  private
      32    Bishop, 426 U.S. at 344.
      33     Smith  v.  Cleary, 24 P.3d 1245, 1247 (Alaska  2001)
 (citing  Hertz  v.  State, Dept of Corr., 869 P.2d  154  (Alaska
 1994)  and  Logghe v. Jasmer, 686 P.2d 694 (Alaska 1984)).   Cf.
 Rathke  v.  Corr. Corp. of Am., 153 P.3d 303, 311 (Alaska  2007)
 (relying  on  Smith, 24 P.3d at 1247 n.3, but stating  in  dicta
 that  the FSA is an enforceable contract between Alaska  inmates
 and the state).
      34     Id.  at  1249 (quoting Municipality of Anchorage  v.
 Gentile, 922 P.2d 248, 255-56 (Alaska 1996)).
      35     See  McGee  v. McGee, 974 P.2d 983, 989-991  (Alaska
 1999)  (finding no error where trial court granted relief  under
 Civil  Rule  60(b)(6)  from marital property  division  judgment
 after   creation  of  Individual  Fishing  Quota  program  which
 created  valuable  marital  property  not  divided  in  original
 judgment);  Weiss  v. State,  939 P.2d 380,  397  (Alaska  1997)
 (discussing  consent  decree in class action  against  state  by
 developmentally disabled plaintiffs, we noted that [a]  material
 change of the settlement agreement by the legislature would .  .
 .  present one of the narrowly defined situations  that  clearly
 present  other  reason[s]  for  justifying  relief  under   Rule
 60(b)(6)  allowing a court to relieve plaintiffs  of  their  own
 obligations under the agreement).
      36     18 U.S.C.  3626(b) (2006).
      37     See,  e.g., Benjamin v. Jacobson, 172 F.3d 144,  164
 (2nd  Cir.  1999)  (finding  no  protected  property  right   in
 prospective  enforcement of consent decree, and  therefore  that
 PLRA  does not violate due process by depriving inmates of  it);
 see  also  Inmates of  Suffolk County Jail v.  Rouse,  129  F.3d
 649, 658 (1st Cir. 1997); and Pyler v. Moore, 100 F.3d 365,  370
 (4th  Cir. 1996) ([W]e conclude that the term Federal  right  as
 used  in  [PLRA]  does not include rights conferred  by  consent
 decrees  providing relief greater than that required by  federal
      38    Benjamin, 172 F.3d at 164.
     39    See supra n.19.

     40    AS 09.19.200(e).

     41    AS 09.19.200(e) (emphasis added).

     42    835 P.2d 438, 442 n.3 (Alaska 1992).

     43    177 P.3d 258, 268 (Alaska 2008).

     44    Id.

     45    Id.

     46    Id.

     47    See Alaska R. Admin. P. 12(a) (The court shall appoint
counsel.  . . . only when the court specifically determines  that
the appointment is clearly authorized by law or rule).

     48      See   Alaska  R.  of  Admin.  P.  12(b)-(c)  (giving
appointments  procedures  under  those  statutes  providing   for
appointment of counsel  AS 18.85.100 and AS 44.12.410).

     49     See  Alaska  R.  of  Admin.  P.  12(e)  (setting  out
appointments  procedures  in  situations  where  constitution  or
statutes  require appointment of counsel  for biological  parents
in  adoption cases governed by the Indian Child Welfare Act,  for
minor   children   and  indigent  parents/custodians   in   minor
guardianship  cases,  for respondents in  protective  proceedings
governed by AS 13.26, for minor children or incompetents who  are
heirs  or  devisees of estates which cannot pay  their  attorneys
fees,  for  indigent putative fathers when the  state  of  Alaska
provides representation for mothers, for indigent respondents  in
involuntary  alcohol commitments governed by AS  47.37,  and  for
indigent  parents  defending  a  claim  that  their  consent   to
adoption is not required).

     50     Bustamante v. Alaska Workers Comp. Bd., 59 P.3d  270,
274  (Alaska 2002) ([Plaintiffs] claim does not fall into one  of
the  already recognized exceptions [to the rule that an  indigent
person  has  no right to appointed counsel in most civil  cases].
We  must  therefore  determine whether [Plaintiffs]  due  process
rights were violated. . . .).

     51    Id.

     52     Midgett  v.  Cook Inlet Pre-Trial Facility,  53  P.3d
1105, 1112 (Alaska 2002).

     53    See Bustamante, 59 P.3d at 274.

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