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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 (2/12/2010) sp-6457

Hertz v. Carothers (2/12/2010) sp-6457, 225 P3d 571

     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- 13245
) Superior Court No. 1JU-04- 425 CI
v. )
) O P I N I O N
) No. 6457 - February 12, 2010
          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, Richard A. Svobodny, Acting Attorney
          General, Juneau, for Appellee.

          Before:    Eastaugh,  Winfree  and  Christen,
          Justices. [Carpeneti, Chief Justice and Fabe,
          Justice, not participating.]

          CHRISTEN, Justice.

         This  is the second time we have addressed Sidney Hertzs
objections  to  the States attempt to execute a judgment  against
his  prisoner trust account.  In Hertz v. Carothers1  (Hertz  I),
Hertz  challenged  the States right to execute  on  his  prisoner
trust  account  to satisfy a judgment for Alaska  Civil  Rule  82
attorneys  fees entered after Hertz lost a prisoner civil  rights
lawsuit against the State.  There, we affirmed the validity of AS
09.38.030(f) which excludes prisoners from an exemption  for  low
wage  earners.   Following Hertz I, the  State  again  levied  on
Hertzs  trust  account to satisfy the remainder of its  judgment.
Hertz now challenges the levy on the grounds that (1) he was  not
         served properly; (2) ambiguities between AS 09.38.030(f) and AS
33.30.201(d)   should  be  resolved  in   his   favor;   (3)   AS
09.38.030(f)(5)   is  an  ex  post  facto   law;   and   (4)   AS
09.38.030(f)(5) violates the contract clauses of the  Alaska  and
United  States Constitutions.  We reverse the courts ruling  that
Hertz  was  properly  served but affirm the courts  rulings  that
Hertzs  prisoner trust account is subject to execution  and  that
the  States attorney should not be sanctioned.  We also hold that
AS  09.38.030(f) is not an ex post facto law and that it does not
violate  the  contract clause of the Alaska Constitution  or  the
contract clause of the United States Constitution.
          Hertz  is an inmate at Spring Creek Correctional Center
(SCCC).    In  July  2004  he  sued  the  Alaska  Department   of
Corrections and several of its employees for alleged civil rights
violations.2   The superior court dismissed Hertzs  civil  rights
suit  and awarded Rule 82 attorneys fees of $3,225 to the State.3
The  fee award was later reduced to a judgment.4  When the  State
attempted  to  execute against Hertzs prisoner trust  account  to
satisfy   the  judgment,  Hertz  claimed  exemptions   under   AS
09.38.030(a)  and (b).5  Specifically, he argued that  his  wages
were  exempt from execution because they fell below the statutory
minimum  in  AS  Alternatively, he argued  that  the
statute  was invalid under several different theories.7   In  our
January  2008 decision, Hertz I, we affirmed the superior  courts
order  rejecting Hertzs claims of exemption.8  We  also  affirmed
the validity of AS 09.38.030(f).9
          On  March  14, 2008, the State again sought to  execute
against  Hertzs prisoner account to satisfy the remaining portion
of  its  judgment.  The States service instructions directed  the
Alaska  State Troopers (Judicial Services) to serve the  writ  of
execution  and creditors affidavit on Superintendent Turnbull  at
SCCC.   The service instruction form contained a separate section
entitled  Instructions for Serving Notices on the  Debtor,  which
directed that a copy of the States creditors affidavit, notice of
levy  and sale of property, notice of right to exemptions,  claim
of  exemptions  form, and judgment debtor booklet  be  served  on
Hertz.   On June 12, 2008, a trooper served the writ of execution
on  Superintendent  Turnbull.  The  trooper  did  not  serve  any
documents on Hertz.
          It is undisputed that Hertz had actual knowledge of the
States  attempt to execute against his prisoner trust account  by
June  17,  2008,  when  he sent a letter to  the  superior  court
challenging the States theft of his money based in part  on  lack
of  notice.  When the States counsel realized that Hertz had  not
been served, she faxed the documents that should have been served
on  Hertz to SCCC.  A prison guard personally delivered  them  to
Hertz on June 19, 2008.
          Hertz  responded  to  the  faxed  documents  by  filing
several  claims of exemption in which he argued that (1) improper
service  voids the levy; (2) ambiguities between AS  33.30.201(d)
which  provides  that the primary purpose of the  prisoner  trust
account is to make funds available for prisoners use at the  time
of release  and AS 09.38.030(f)(5)  which allows the execution of
          judgments against prisoner accounts  must be construed against
the government; and (3) $185 in his trust account was not subject
to execution because he had received it in the form of gifts from
family and friends and the money should have been retained by the
commissioner pursuant to AS 33.30.201(d).
          On  August  5,  2008, the superior court denied  Hertzs
claims of exemption, citing Hertz I.  The superior court reasoned
that  our court has ruled that a prisoners trust account  may  be
subject to execution, and noted that there is no exception in the
statutory scheme for money acquired by gift.  Finally, the  court
rejected  Hertzs argument that the errors in the  States  service
should  negate  the writ because there is no prejudice  by  [the]
delayed  service  and no showing of a knowing  violation  of  the
statute.    The  superior  court  rejected  Hertzs   motion   for
          Hertz appeals.
          We  review issues of statutory interpretation, as  well
as  questions about the constitutionality of statutes, de novo.10
Decisions whether to sanction attorneys are reviewed for abuse of
discretion.11   A  judges refusal to recuse him-  or  herself  is
reviewed under the abuse of discretion standard.12

     A.   The  Execution  on  Hertzs Prisoner Trust  Account  Was
          Invalid Because the State Failed To Properly Serve Him.
          The  State  argues that it was in technical  compliance
with AS 09.38.085(a)(1) because it served Hertz with a notice  of
levy,  a claim of exemptions form, a creditors affidavit,  and  a
judgment  debtors  handbook.  But the State misses  the  crux  of
Hertzs  argument.  Hertzs challenge is not to the sufficiency  of
the documents served; he challenges the States method of service.
          Several  statutes  and rules describe  the  notice  the
State  was required to provide Hertz before levying on his  trust
account.  Alaska Statute 09.38.080(c) requires that [b]efore,  at
the  time  of, or within three days after the levy, the  creditor
shall  serve  on  the  individual  [debtor]  a  notice  under  AS
09.38.085.  Alaska Statute 09.38.085 describes the content of the
required  notices, and AS 09.38.500, the definitions  section  of
the  Alaska Exemptions Act, specifies the method for serving  the
notices.  The term serve notice in AS 09.38.080(c) means to  give
the  person  to be served a written personal notice in  the  same
manner  a  summons in a civil action is served, or  to  mail  the
notice to the persons last known address by first-class mail  and
by  using a form of mail requiring a signed receipt.13  Hertz was
served personally, not by mail, so we turn to the civil rules.
          Civil  Rule  4 identifies the permissible  methods  for
serving a summons in a civil action.  It requires service  to  be
made  by a peace officer, by a person specially appointed by  the
Commissioner of Public Safety for that purpose or, where  a  rule
so  provides, by registered or certified mail.  The rule  defines
peace officer as any officer of the state police, members of  the
police  of  any  incorporated city, village  or  borough,  United
          States Marshals and their deputies, other officers whose duty it
is  to  enforce and preserve the public peace, and . . .  persons
specially appointed.  Special appointments shall only be made  by
the  Commissioner of Public Safety after a thorough investigation
of each applicant.14
            After the States counsel learned that the trooper had
failed  to serve Hertz as instructed, she faxed the documents  to
SCCC.   A prison guard delivered them to Hertz on June 19,  2008.
But  the State did not argue, and the record does not show,  that
the prison guard who served Hertz was a peace officer or a person
specially appointed to serve process within the meaning of  Civil
Rule  4.   We  agree with the superior court that  the  delay  in
service  was  not prejudicial to Hertz, but the State  was  still
required to use an authorized method of service.  The record does
not show that the State complied with Civil Rule 4.15
          We  are  mindful that our ruling regarding service  may
appear  to  elevate form over substance because Hertz had  actual
knowledge  of  the levy by June 16, 2008.  But we are  loathe  to
carve  out  exceptions  to the important  rules  for  service  of
process.   These rules enable courts to verify that  service  has
actually  been  made; they are vital to ensuring  that  litigants
receive the due process to which they are entitled, and they  are
broadly  applicable.   Creating  an  exception  merely  to  avoid
requiring  the  State  to properly serve Hertz  is  fraught  with
precedential danger.  Such an exception, though seemingly narrow,
could be applied in future cases to relax the notice requirements
for litigants who might not have received the actual notice Hertz
enjoyed.   This  danger  would  be  especially  acute  in   cases
involving  requests  for entry of default  judgment.   Given  the
serious   consequences  of  execution,  i.e.,   the   involuntary
confiscation  of  a debtors property, we must  insist  on  strict
compliance with the legislatures statutory scheme and the service
requirements of Civil Rule 4.16
     B.   Alaska Statutes 33.30.201(d) and 09.38.030(f)(5) Do Not
          Conflict and Are Not Ambiguous.
          Alaska  Statute 33.30.201(d) provides for prisoners  to
be compensated for their work in prison and for their wages to be
placed  in  a  trust  account for the primary  purpose  of  being
available  to  them at the time of release.  But AS  09.38.030(f)
provides that [a]ll money in an incarcerated persons account at a
correctional  facility  is  available for  disbursement  under  a
notice  of levy under this subsection . . . (5) to satisfy  other
judgments  entered against a prisoner in litigation  against  the
state.   Hertz  argues that the primary purpose  language  of  AS
33.30.201(d)  conflicts  with  the  disbursement  scheme  in   AS
09.38.030(f).    Citing   this  ambiguity   Hertz   argues   that
[a]mbiguities  in  criminal statutes must be  narrowly  read  and
construe[d] strictly against the government.
          In  Hertz I, we upheld the states ability to execute on
prisoner  accounts despite an exemption for low-wage earners  and
those   who   are   paid  semi-monthly.17   We  noted   that   AS
09.38.030(f)(5)  specifically eliminates the low-wages  exemption
when low wages are paid to prisoners.18
          Hertzs  present  challenge  to  AS  09.38.030(f)(5)  is
technically  barred  by the doctrine of res  judicata;19  he  was
required  to raise all of his challenges to the statute in  Hertz
I.20   But  Hertzs  argument is unavailing even  on  the  merits.
Alaska  Statute  33.30.201 states that prisoner  wages  shall  be
disbursed  pursuant  to a specified order of  priority  and  that
remaining funds are to be given to the prisoner when he or she is
released,  subject  to exceptions.  After all  disbursements  are
paid  in  the statutorily required order of priority,  subsection
.201(f)  states  that  remaining  funds  are  subject  to   lien,
attachment,  garnishment,  execution, or  similar  procedures  to
encumber  money  or property.  This provision does  not  conflict
with  AS  09.38.030(f)(5).  Alaska Statutes 33.30.201(c) and  (f)
identify  the priorities for which a prisoners trust account  can
be  invaded, and AS 09.38.030(f) explains that prisoners  do  not
enjoy the benefit of the exemption for earnings and liquid assets
enunciated  in AS 09.38.030 generally.  Both statutes contemplate
and  accommodate the execution and garnishment of prisoner  trust
          To  the  extent  that Hertz argues that these  statutes
must  be  construed against the State because they  are  criminal
statutes,  he  is mistaken.  The fact that these statutes  govern
the  administration of prisoner trust accounts does not make them
criminal  statutes.   Hertz has cited no authority  and  we  have
found  none  supporting  his assertion that  statutes  should  be
strictly construed against the State merely because they apply to
convicted  felons.  Alaska Statutes 09.38.030 and  33.30.201  are
civil statutes, they are not ambiguous, and they do not conflict.
After  all disbursements are made from a prisoners trust  account
pursuant  to the statutes order of priority, all remaining  funds
are subject to execution.
     C.   Alaska Statute 09.38.030(f)(5) Is Not an Ex Post  Facto
          Hertz  asserts that AS 09.38.030(f)(5) is  an  ex  post
facto law.  The basis for this argument is that this statute  was
passed in 1995, after the State entered into a consent decree  to
resolve litigation challenging the conditions of confinement  for
Alaska  prisoners.21   Hertz  argues  that  the  adoption  of  AS
09.38.030(f)(5) in the wake of the Cleary consent decree  creates
the appearance that AS 09.38.030(f)(5) was enacted solely for the
purpose  of circumventing the Cleary [Final Settlement  Agreement
and Order].
          We  have adopted the United States Supreme Courts  view
          any  statute which punishes as a crime an act
          previously committed, which was innocent when
          done;   which   makes  more  burdensome   the
          punishment for a crime, after its commission;
          or which deprives one charged with a crime of
          any defense available according to law at the
          time   when   the   act  was  committed,   is
          prohibited as ex post facto.[22]
Alaska Statute 09.38.030(f)(5) does not criminalize behavior that
was  previously not criminal and it has no bearing on the defense
of any crime; it is not an ex post facto law.
     D.   Alaska  Statute  09.38.030(f)(5) Does Not  Violate  the
          Contract Clause.
          Hertz  argues  that  AS  09.38.030(f)(5)  violates  the
contract  clause  of  the  United  States  Constitution  and  the
contract  clause  of  the Alaska Constitution by  substantial[ly]
impair[ing]  his  contractual right to allege noncompliance  with
the Cleary consent decree.  He supports this argument by pointing
out that this Court has admitted that A.S. 09.38.030(f)(5) was to
discourage prisoner litigation.  Our court has explained:
          Article   I,   section  15  of   the   Alaska
          Constitution provides:  No law impairing  the
          obligation  of  contracts  .  .  .  shall  be
          passed.  Because the language of the contract
          clause  of the Alaska Constitution is  nearly
          identical  to  that of the  federal  Contract
          Clause,  we apply the same two-part  analysis
          to  alleged  violations  of  the  Alaska  and
          federal  contract  clauses.   We  first   ask
          whether  the change in state law has operated
          as  a substantial impairment of a contractual
          relationship.   If  there  is  a  substantial
          impairment,  we  then  examine  whether   the
          impairment  is  reasonable and  necessary  to
          serve an important public purpose.
          . . . .
          Under  the first prong of the contract clause
          test,  we consider:  (1) whether there  is  a
          contractual relationship, (2) whether the law
          impairs the contractual relationship, and (3)
          whether the impairment is substantial.[23]
          The  Cleary  consent decree sets minimum standards  for
conditions of prisoner confinement including food, medical  care,
and  dental  care.  It also provides procedures for prisoners  to
file  grievances  for  non-compliance with the  decree.24   After
exhausting the administrative grievance procedure, an inmate  may
file  suit in superior court.  In this case, the State  does  not
challenge  Hertzs  assertion  that  the  Cleary  consent   decree
established  a  contractual relationship between  the  State  and
inmates  in the custody of the State of Alaska,25 arguing instead
that   even  if  such  a  contractual  relationship  exists,   AS
09.38.030(f) does not impair it.  We agree; AS 09.38.030(f)  does
not  impair  prisoners ability to seek enforcement of the  Cleary
consent  decree.   We  do not need to decide whether  the  Cleary
consent decree constitutes a binding contract.
          Civil Rule 82 provides for the award of attorneys  fees
to the prevailing party of a civil lawsuit.  Civil Rule 82 was in
effect  when  the Cleary consent decree was entered, November  1,
1990.   The  consent  decree  addresses  certain  conditions   of
confinement;  it does not immunize prisoners from  attorneys  fee
awards  or exempt inmate trust accounts from execution to satisfy
          fee awards.  Alaska Statute 09.38.030(f)(5) allocates some of the
States cost of defending lawsuits to the non-prevailing prisoner,
thereby discouraging frivolous claims.26  An inmates right to  be
free  of state interference with his right of access to the court
system is not absolute.27  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.28  Alaska Statute 09.38.030(f)(5)  does  not
prevent or stifle a prisoners ability to pursue legitimate claims
against the government.
          The  specter  of Rule 82 fees tempers the litigiousness
of  most  civil  litigants; we see no reason to  make  a  special
exception  for  inmates.   Alaska Statute 09.38.030(f)(5)  merely
reflects  the States interest in discouraging frivolous  prisoner
litigation, a legitimate goal we have repeatedly upheld.29  We are
not convinced that permitting the State to collect judgments from
prisoner  trust accounts impairs the right of prisoners  to  seek
enforcement of the Cleary consent decree,30 and we hold  that  AS
09.38.030(f)(5)   does  not  violate  the   Alaska   or   federal
prohibition against impairment of contracts.
     E.   There Was No Misconduct by the States Attorney.
          Hertz  asserts that the superior court erred by failing
to  sanction  the States counsel under Professional Conduct  Rule
95(b) for (1) failing to have him served by a peace officer;  and
(2)  for lying because she never intended to serve Hertz with the
          The superior court correctly decided that Hertzs claims
of  attorney misconduct are meritless.  There is no evidence that
the States counsel acted inappropriately during the course of her
efforts  to  collect  the States judgment.   At  most,  there  is
evidence  that  a  mistake  was made  at  the  time  of  service.
Ironically, Hertzs allegation of misconduct arises from  counsels
rush to arrange for personal delivery of the documents that would
notify  Hertz  of  his  right  to claim  exemptions;  the  States
attorney  likely  faxed  the  documents  to  SCCC  for  immediate
delivery  in order to comply with AS 09.38.080(c), which requires
the  debtor to receive notice [b]efore, at the time of, or within
three days after the levy.
          Even  though the State failed to comply with Civil Rule
4,  there  is  no  evidence that the States counsel  intended  to
deprive  Hertz  of  his right to notice.  Hertz  admits  that  he
received the relevant documents by fax just days after he learned
of  the  levy  and  apparently shortly after the States  attorney
discovered   the  mistake.   The  superior  court   appropriately
declined to sanction the States attorney.
     F.   Hertz  Waived  His Argument that Judge  Collins  Should
          Have  Recused Herself Because of Apparent Bias  Against
          Hertz  argues that the superior court judge created  an
appearance  of  impropriety by ruling on his claim of  exemptions
before receiving his response to the States objections.31  We see
no  evidence  of  any bias in the record.  And Hertz  waived  the
issue in any event by failing to move for disqualification in the
          superior court.32
          We  REVERSE the courts ruling that Hertz was adequately
served,  but hold that AS 33.30.201(d) and AS 09.38.030(f)(5)  do
not  conflict  and are not ambiguous, that AS 09.38.030(f)(5)  is
not  an  ex post facto law, and that AS 09.38.030(f)(5) does  not
violate the contract clause of the Alaska Constitution or  United
States Constitution.  We AFFIRM the superior courts rulings  that
Hertzs  trust account is subject to execution and that the States
attorney should not be sanctioned.

     1    174 P.3d 243 (Alaska 2008).

     2   Id. at 245.

     3   Id.

     4   Id.

     5   Id.

     6   Id.

     7   Hertz v. Carothers, 174 P.3d 243, 245 (Alaska 2008).

     8   Id.

     9   Id. at 244.

     10   C.J. v. State, Dept of Corr., 151 P.3d 373, 377 (Alaska
2006)  (citing  State v. Alaska Civil Liberties Union,  978  P.2d
597,  603  (Alaska  1999); Boone v. Gipson,  920  P.2d  746,  748
(Alaska 1996)).

     11    Hertz, 174 P.3d at 245 (citing In re Schmidt, 114 P.3d
816, 819 (Alaska 2005)).

     12     Mustafoski v. State, 867 P.2d 824, 832  (Alaska  App.
1994)  (citing Blake v. Gilbert, 702 P.2d 631, 640 (Alaska 1985);
Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991)).

     13   AS 09.38.500(14).

     14   Alaska R. Civ. P. 4(c)(3).

     15    The  States  reliance  on the  substantial  compliance
provision  in  AS  09.38.085(c)  is  misplaced.   That  provision
excuses  errors  in  the notices themselves, not  errors  in  the
physical delivery of the forms.

     16    See  Beery v. Browning, 717 P.2d 365, 367 n.8  (Alaska

     17   Hertz v. Carothers, 174 P.3d 243, 246 (Alaska 2008).

     18   Id.

     19   See Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163,
166  (Alaska  1997) (The doctrine of res judicata as  adopted  in
Alaska  provides that a final judgment in a prior action  bars  a
subsequent action if the prior judgment was (1) a final  judgment
on  the merits, (2) from a court of competent jurisdiction, [and]
(3)  in  a dispute between the same parties . . . about the  same
cause of action.).

     20   Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981) ([A]
fundamental  tenet  of  the  res judicata  doctrine  is  that  it
precludes  relitigation  between the same  parties  not  only  of
claims  that were raised in the initial proceeding, but  also  of
those relevant claims that could have been raised then.).

     21    Cleary v. Smith, No. 3AN-81-5274 Ci., Final Settlement
Agreement and Order (Alaska Super., September 21, 1990).

     22    State  v.  Anthony, 816 P.2d 1377, 1378 (Alaska  1991)
(quoting Dobbert v. Florida, 432 U.S. 282, 292 (1977)).

     23    Hageland Aviation Serv., Inc. v. Harms, 210 P.3d  444,
451-52 (Alaska 2009) (internal footnotes and citations omitted).

     24    Cleary v. Smith, No. 3AN-81-5274 Ci., Final Settlement
Agreement and Order (Alaska Super., September 21, 1990).

     25    See  Hertz v. State, Dept of Corr., ___ P.3d ___,  Op.
No.  12842  at  n.33 (Alaska, January 8, 2010) (noting  dicta  in
Rathke  v.  Corr. Corp. of Am., 153 P.3d 303, 311  (Alaska  2007)
that  the  FSA is an enforceable contract between Alaska  inmates
and the state. )

     26   Hertz v. Carothers, 174 P.3d 243, 247 (Alaska 2008).

     27   Brandon v. Corr. Corp. of Am., 28 P.3d 269, 277 (Alaska
2001)  (quoting  Mathis v. Sauser, 942 P.2d  1117,  1121  (Alaska

     28   Id.

     29    See  Hertz, 174 P.3d at 248; Brandon, 28 P.3d  at  277
(affirming the validity of a statute requiring prisoners  to  pay
a portion of filing fees based on ability to pay).

     30    Cf.  Hageland Aviation Serv., Inc. v. Harms, 210  P.3d
444,   453   (Chapter  19  substantially  impaired  the  overtime
compensation  provision of the parties employment agreement  when
Chapter  19  totally  eliminated the  pilots  claims  for  unpaid
overtime wages.).

     31    Judge  Collins  corrected herself by  granting  Hertzs
motion  for reconsideration and reviewing Hertzs response to  the
States objections.

     32    See  Brandon v. Corr. Corp. of Am., 28 P.3d  269,  280
(Alaska 2001) (A party may not raise an issue for the first  time
on   appeal.).    Our  court  uses  independent   judgment   when
determining  whether  an  issue has  been  waived  below  due  to
inadequate  briefing.  Lauth v. State, 12 P.3d 181,  184  (Alaska
2000)  (citing Wilkerson v. State, Dept of Health & Soc.  Servs.,
Div.  of  Family  &  Youth Servs., 993 P.2d  1018,  1021  (Alaska

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