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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Farmer v. State, Dept. of Law, Office of Attorney General (6/25/2010) sp-6483

Farmer v. State, Dept. of Law, Office of Attorney General (6/25/2010) sp-6483, 235 P3d 1012

     Notice:   This opinion is subject to correction  before
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            THE SUPREME COURT OF THE STATE OF ALASKA

PAUL N. FARMER, )
) Supreme Court No. S- 13203
Appellant, )
) Superior Court No. 3AN-07-10878 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF LAW, ) No. 6483 June 25, 2010
OFFICE OF THE ATTORNEY )
GENERAL, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial District, Anchorage, Sharon Gleason,
          Judge.

          Appearances:   Paul  N.   Farmer,   pro   se,
          Anchorage.  Kenneth M. Rosenstein,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions   &   Appeals,  Anchorage,   and
          Richard A. Svobodny, Acting Attorney General,
          Juneau, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          FABE, Justice.


I.   INTRODUCTION
          In  the  early  1990s,  Paul Farmer  was  convicted  of
several  felonies.   More  than ten years  after  completing  his
sentence  of  incarceration, followed by  a  term  of  probation,
Farmer  attempted  to  purchase a  rifle.   The  FBI  refused  to
authorize his purchase, presumably due to his felony convictions.
Farmer then petitioned for expungement of his criminal record  so
that  he would be able to legally purchase and possess a firearm.
While  acknowledging that it is an open question  whether  Alaska
courts  have inherent authority to expunge criminal records,  the
superior  court  concluded that even if  such  authority  exists,
Farmer  would  not qualify for expungement.  The  superior  court
denied  Farmers petition, and Farmer appealed.  Because we  agree
that  Farmer  would not qualify for expungement  even  if  Alaska
courts  have  inherent authority to expunge criminal records,  we
affirm the superior courts ruling.
II.  STATEMENT OF FACTS
     A.   Facts
          In  1991 Paul Farmer pleaded no contest to the crime of
misconduct involving a controlled substance in the fourth degree,
a  felony.1  Superior Court Judge Beverly W. Cutler suspended the
imposition  of  sentence on the condition that Farmer  serve  two
years  of probation.2  In 1993 Farmer was convicted of two counts
of  misconduct  involving a controlled substance  in  the  fourth
degree and one count of misconduct involving weapons in the first
degree,  also a felony.  The superior court sentenced  Farmer  to
two  years for the controlled substance convictions and two years
with  all  but  sixty days suspended for the weapons  conviction.
The  superior court also imposed sentence on the 1991  controlled
substance  conviction, sentencing Farmer to  one  year  with  ten
months suspended.
          More  than ten years after completing his sentence  and
subsequent period of probation, Farmer tried to buy a rifle.  The
FBI  sent  Farmer  a letter refusing to authorize  the  purchase,
presumably  due  to  his  felony convictions.   Farmer  evidently
appealed, and the FBI sent Farmer a letter denying his appeal.
     B.   Proceedings
          On October 19, 2007, about four and a half months after
receiving  the  FBIs letter denying his appeal,  Farmer  filed  a
petition in superior court seeking to expunge his criminal record
and  arguing  that  he has led an honest and upright  life  since
completing  his probation.  He also asserted that he  requires  a
firearm for self defense in the home, hunting, or for subsistence
off  the  land  and that, under these circumstances,  permanently
banning him from purchasing and possessing a firearm violates his
constitutional right to bear arms.  The State filed an opposition
to  Farmers  petition, arguing that federal law prohibits  Farmer
from  possessing any firearm or ammunition for the  rest  of  his
life,  and that the prohibition would not be lifted even if court
records later are sealed or expunged.
          Farmer  filed  a  reply memorandum,  accompanied  by  a
second  motion and memorandum, asking the court to  rule  on  the
merits of his petition.  In its response, the State characterized
Farmers  petition  as concerning his right to  buy  firearms  and
argued  that  the  right to buy firearms is not  constitutionally
protected.  The State also argued that Farmer was not entitled to
expungement of his record.
          On  July  3, 2008, the superior court issued  an  order
denying  Farmers  petition for the expungement  of  his  criminal
convictions.  As the order explained, No Alaska statute, rule  or
judicial  decision expressly vests Mr. Farmer with the  right  to
          obtain the expungement of his criminal records.  The court noted
that  under  AS  12.55.085,  it  is  permitted  to  set  aside  a
conviction under certain circumstances.  While acknowledging that
it  is  an  open question whether a trial court has the  inherent
authority to expunge Mr. Farmers felony convictions, the superior
court  concluded  that doing so under the circumstances  of  this
case would clearly be an abuse of discretion.
          Farmer   then  filed  a  motion  to  have   his   prior
convictions  set  aside, which the State opposed.   The  superior
court  denied Farmers motion, explaining that convictions may  be
set  aside  only  where  a  felon  has  been  discharged  without
imposition of sentence and that because Farmer received sentences
of record, his convictions could not be set aside.
          Farmer   appeals  the  denial  of  his   petition   for
expungement.  He also argues that the superior court  erroneously
prevented  him  from filing a motion for reconsideration  of  its
final judgment.
III. STANDARD OF REVIEW
          This   case   involves   issues   of   statutory    and
constitutional  interpretation to which we apply our  independent
judgment,  adopting  the rule of law that is most  persuasive  in
light  of  precedent, reason, and policy.3   We  review  a  trial
courts  decision whether to provide guidance to a pro se litigant
for abuse of discretion.4
IV.  DISCUSSION
          Farmer  argues  that  he should  qualify  for  judicial
expungement   of   his  criminal  record  because   denying   him
expungement  violates  his  right to  bear  arms,  his  right  to
privacy, and his right to due process and because his convictions
resulted  from admission of evidence obtained through an  illegal
search.
          In  Journey  v.  State, we declined to  decide  whether
Alaska  courts  have inherent authority to expunge  a  defendants
criminal  record  because the parties did  not  provide  adequate
briefing  on  how state courts had resolved the  question.5   But
even  if  Alaska courts do have inherent authority to  expunge  a
defendants   criminal  record,  this  case   does   not   present
circumstances that would justify expungement.
     A.   Even  If  Alaska  Courts  Have  Inherent  Authority  To
          Expunge  Criminal Convictions, Farmer Would Not Qualify
          For Expungement.
          
          Court decisions finding inherent judicial authority  to
expunge  criminal  records  suggest that  the  power  to  expunge
inheres  either  in the courts expressly conferred  authority  to
preside over trials and sentencings in criminal cases or  in  its
traditional  role  as  enforcer  of  constitutional  guarantees.6
Federal  courts have uniformly claimed inherent power to  expunge
criminal  records.7  But they have reserved this  authority  only
for  the  unusual  or extreme case.8  State courts  holding  that
they,  like  federal courts, have inherent authority  to  expunge
criminal records have adopted a variety of standards for  when  a
petitioner  may  qualify  for  expungement.   Some  have  adopted
balancing  tests  weighing  the petitioners  rights  against  the
          publics interest in retaining criminal records.9  At least one
state  court  applies a balancing test even when the  petitioners
constitutional rights are not implicated.10  Others, including the
Alaska  Court  of  Appeals,  indicate  that  an  exceptional   or
extraordinary circumstances standard would be appropriate.11
          1.   If   Alaska  courts  have  inherent  authority  to
               expunge  criminal convictions, they  may  properly
               exercise  that  authority only in  exceptional  or
               extraordinary circumstances.
               
          In  the  federal  court system, inherent  authority  to
expunge   criminal  records  is  limited,  and   expungement   is
appropriate  only  where  the extraordinary  circumstances  of  a
particular  case outweigh the governments interest in maintaining
criminal  records.12   For  example,  federal  courts  may  order
expunction  in  cases  where there has been an  unlawful  arrest,
where an arrest has been made merely for harassment purposes,  or
where  the  statute under which an individual was prosecuted  has
subsequently    been   determined   to   be   unconstitutional.13
Expungement  of  an arrest record is not necessarily  appropriate
when a criminal defendant has been acquitted.14
          While  we  do  not  adopt  any  specific  standard  for
determining  whether expungement is appropriate,  we  agree  that
even  if  Alaska  courts  have  inherent  authority  to  expunge,
judicial expungement of criminal records should be an exceptional
or extraordinary remedy rather than a generally available one.
          2.   Farmers   case   does  not  present  extraordinary
               circumstances   that   would   justify    judicial
               expungement of his criminal record.
               
          We  first  address Farmers argument that he is entitled
to  expungement  of his criminal record because the  search  that
produced  evidence leading to his first conviction  was  illegal.
As  the  State  points out, the court of appeals considered  this
argument  in  1992 and affirmed the denial of Farmers suppression
motion  and  his conviction.15  Farmer has thus never established
the  illegitimacy  of  the  search that  resulted  in  his  first
conviction.  And he has neither identified new facts  nor  raised
new  legal  arguments that might challenge the  validity  of  his
convictions.  Finally, Farmer has never established  his  factual
innocence of the charges of which he was convicted.  We therefore
assume,  for  the  purposes  of this  case,  the  lawfulness  and
validity  of Farmers convictions and the accuracy of  the  States
record  of  his  criminal  history.  Farmers  allegations  of  an
illegal  search  therefore  cannot  justify  expungement  of  his
criminal record.
          We  now turn to Farmers main argument  that denying him
expungement violates his constitutional rights.  As the court  of
appeals explained in its review of the expungement issue, [U]nder
certain circumstances, an order expunging criminal records  might
be   appropriate   to   prevent  or   remedy   a   violation   of
[constitutional]  rights, even though the disputed  records  were
properly obtained and retained in the first instance.16
          Farmer  primarily  argues  that  because  his  criminal
          record prevents him from purchasing and possessing a firearm,
denying him expungement violates the right to bear arms under the
Second Amendment to the United States Constitution and article I,
section  19  of  the  Alaska Constitution.   Citing  District  of
Columbia v. Heller, a decision by the Supreme Court of the United
States  holding that the Second Amendment confers  an  individual
right to bear arms,17 Farmer argues that prohibiting all convicted
felons  from  purchasing and possessing firearms unjustly  denies
convicted felons their constitutional right.
          As  the  Supreme Court explained, however,  the  Second
Amendment is not unlimited, and its ruling in Heller should [not]
be  taken  to  cast  doubt on longstanding  prohibitions  on  the
possession of firearms by felons.18  As the State points  out  in
its  briefing, this means that prohibitions on the possession  of
firearms  by  convicted felons survive Heller.  Like  the  Second
Amendment,  the individual right to bear arms set out in  article
I,  section 19 of the Alaska Constitution is limited and does not
invalidate  laws  that  restrict  convicted  felons   access   to
firearms.19
          Because prohibitions on the purchase and possession  of
firearms  by  convicted felons do not violate either  the  Second
Amendment of the United States Constitution or article I, section
19  of  the  Alaska Constitution, Farmers argument is unavailing.
The adverse consequences of conviction that Farmer argues violate
his  constitutional rights are, in fact, the natural and intended
collateral  consequences of having been  convicted.20   For  this
reason,  they do not justify judicial expungement of his criminal
record.21
     B.   The Superior Court Did Not Prevent Farmer From Filing A
          Motion For Reconsideration.
          
          The  last  line  of  the superior  courts  final  order
denying   Farmers  petition  reads:   Accordingly,  Mr.   Farmers
petition  is DENIED and this action is DISMISSED with  prejudice.
Farmer argues that this wording deprived him of his right to file
a  motion  for reconsideration.  As he explains in his  briefing,
The  manner in which [the superior courts] order was worded would
have   barred   any   attorney   from   filing   a   Motion   for
Reconsideration.  After all, [the superior court] dismissed [the]
action WITH prejudice.  This argument is unconvincing.
          As  we  have  recognized, the phrase   with  prejudice,
expressed in a judgment of dismissal, has a well-recognized legal
import; and it indicates an adjudication of the merits, operating
as  res judicata.22  It does not prevent parties to the case from
filing  motions  for reconsideration.  In fact,  Alaska  Rule  of
Civil Procedure 77(k) provides that a party may file a motion for
reconsideration  within ten days of the date  of  notice  of  the
final  judgment in the case.  As the State correctly explains  in
its  briefing,  the superior courts order was the final  judgment
from which Farmer could have filed a motion for reconsideration.
          We  have  held that courts should generally  relax  the
pleading  requirements for pro se litigants,  particularly  where
lack  of familiarity with the rules rather than gross neglect  or
lack  of  good faith underlies litigants errors, and that  courts
          should provide pro se litigants with guidance as to the proper
procedure   for  the  actions  they  are  obviously   trying   to
accomplish.23   We  have also indicated,  however,  that  pro  se
litigants  are  expected to make a good faith attempt  to  comply
with  the  rules of procedure  absent this effort, [the litigant]
may be denied the leniency otherwise afforded pro se litigants.24
Although  the  superior court was likely aware  that  Farmer  was
unhappy  with  its ruling, it had no reason to know  that  Farmer
wanted  to  file a motion for reconsideration as  opposed  to  an
appeal.   Moreover,  Civil  Rule  77(k)  clearly  sets  out   the
requirements for filing a motion for reconsideration, and  Farmer
failed  to  file  even  a defective motion.25   Finally,  because
Farmers  case  involves  issues of statutory  and  constitutional
interpretation, the superior courts ruling is being  reviewed  de
novo.26  Even if it was error not to inform Farmer that he  could
file  a  motion  for reconsideration, our de novo review  of  the
merits of his case cures any possible prejudice.27
V.   CONCLUSION
          For  these  reasons,  we AFFIRM  the  judgment  of  the
superior court.
_______________________________
     1     Farmer  v.  State, Mem. Op. & J.  No.  2582,  1992  WL
12153691, at *1 (Alaska App., Dec. 30, 1992).

     2    Id.

     3     Kohlhaas v. State, Office of the Lieutenant  Governor,
147 P.3d 714, 717 (Alaska 2006).

     4     Snyder v. Am. Legion Spenard Post, 119 P.3d 996,  1001
(Alaska 2005).

     5    895 P.2d 955, 962 (Alaska 1995), affg, Journey v. State
(Journey I), 850 P.2d 663 (Alaska App. 1993) (Given the fact that
neither party provides adequate briefing on the question  of  how
state  courts,  as  opposed to federal courts, have  decided  the
inherent  authority to expunge issue, we conclude that this  case
presents  an  inappropriate occasion upon  which  to  decide  the
issue.).

     6    Journey I, 850 P.2d at 666; see also State v. C.A., 304
N.W.2d  353,  357-58  (Minn. 1981) (holding that  the  judiciarys
inherent  authority  includes both the power  to  fashion  relief
necessary  to  prevent  serious  infringement  of  constitutional
rights  and  the  power  to  reduce or  eliminate  unfairness  to
individuals, even though the unfairness is not of such  intensity
as to give a constitutional dimension).

     7     Journey I, 850 P.2d at 666; see also United States  v.
Friesen,  853  F.2d  816,  817-18 (10th  Cir.  1988);  Maurer  v.
Individually  and  as Members of L.A. County Sheriffs  Dept,  691
F.2d 434, 437 (9th Cir. 1982); United States v. McMains, 540 F.2d
387, 389-90 (8th Cir. 1976); Menard v. Saxbe, 498 F.2d 1017, 1023
(D.C.  Cir. 1974); United States v. McLeod, 385 F.2d 734,  748-50
(5th Cir. 1967).

     8     United  States v. Linn, 513 F.2d 925, 927  (10th  Cir.
1975).

     9     See, e.g., Davidson v. Dill, 503 P.2d 157 (Colo. 1972)
(weighing  the  individuals right to privacy against  the  states
interest  in  maintaining records); Commonwealth v.  Wexler,  431
A.2d  877 (Pa. 1981) (weighing individuals right to be free  from
the  harm  attendant to maintenance of the arrest record  against
the states interest in maintaining records).

     10    See State v. K.M.M., 721 N.W.2d 330, 334-35 (Minn. App.
2006)   (This   inherent  authority  is  exercisable   (1)   when
petitioners  constitutional rights may be seriously infringed  by
retention  of the records; or (2) when constitutional rights  are
not  involved,  but  the court determines that  expungement  will
yield   a  benefit  to  the  petitioner  commensurate  with   the
disadvantages  to the public from the elimination of  the  record
and the burden on the court in issuing, enforcing, and monitoring
an expungement order. ) (quoting State v. Ambaye, 616 N.W.2d 256,
258 (Minn. 2000)).

     11     See,  e.g., Journey I, 850 P.2d at 666 (holding  that
even  if  inherent judicial authority to expunge criminal records
exists,  petitioners  did not present[] the type  of  exceptional
circumstances  that  could conceivably  warrant  a  discretionary
exercise of that authority); Toth v. Albuquerque Police Dept, 944
P.2d 285, 287 (N.M. App. 1997) (holding that if inherent judicial
authority to expunge criminal records exists at all, it  must  be
exercised sparingly and only in extraordinary circumstances).

     12     United  States v. Smith, 940 F.2d 395, 396 (9th  Cir.
1991).

     13     United  States v. G., 774 F.2d 1392, 1394  (9th  Cir.
1985);  see also Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir.  1974)
(where  arrest  was shown never to have been made);  Sullivan  v.
Murphy,  478  F.2d  938  (D.C. Cir.  1973)  (where  arrests  were
unconstitutional); United States v. McLeod,  385  F.2d  734  (5th
Cir.  1967)  (where  arrests  and  prosecutions  were  meant   to
interfere with individuals right to vote).

     14    See, e.g., United States v. Linn, 513 F.2d 925, 927-28
(10th  Cir. 1975) ([I]t would appear that an acquittal,  standing
alone, is not in itself sufficient to warrant an expunction of an
arrest record.).

     15     See Farmer v. State, Mem. Op. & J. No. 2582, 1992  WL
12153691, at *1 (Alaska App., Dec. 30, 1992).

     16    Journey I, 850 P.2d 663, 668 (Alaska App. 1993).

     17    128 S. Ct. 2783 (2008).

     18    Id. at 2816-17.

     19     See  Gibson v. State, 930 P.2d 1300, 1301-02  (Alaska
App. 1997) (holding that the 1994 amendment to article I, section
19  was  not  intended to prevent the legislature from regulating
the  possession and use of firearms).  But see Wilson  v.  State,
207 P.3d 565, 571 (Alaska App. 2009) (Mannheimer, J., dissenting)
(explaining  that  the  drafters  and  supporters  of  the   1994
amendment  intended to impose a strict scrutiny/compelling  state
interest  test for firearms laws and repeatedly rejected  efforts
to  change  the wording of the amendment in ways that would  have
guaranteed   the  legislatures  authority  to  enact   reasonable
firearms    laws,    or   that   would   have   guaranteed    the
constitutionality of Alaskas then-existing firearms laws.).

     20     United  States v. Smith, 940 F.2d 395, 396 (9th  Cir.
1991).

     21    We note that under Alaska law, Farmer may be permitted
to purchase and possess a firearm because his convictions did not
result from any violation of AS 11.41 and because ten years  have
elapsed since Farmer was discharged from his convictions.  See AS
11.61.200(a)(1), (b)(1)(C).  Title 11, chapter 41 of  the  Alaska
Statutes  is  titled  Offenses Against the  Person  and  includes
homicide, assault, kidnapping, sexual offenses, and robbery.   AS
11.41.100.530.  As both parties acknowledge, Farmer was convicted
of three counts of misconduct involving a controlled substance in
the  fourth  degree, violations of Chapter 71, and one  count  of
misconduct involving weapons in the first degree, a violation  of
Chapter  61.   The  State argues that because  Alaska  law  still
restricts Farmers ability to carry concealed firearms, Farmer  is
prohibited from purchasing and possessing a firearm under federal
law.   See AS 11.61.200(a)(12), (g) (prohibiting convicted felons
from  carrying concealed firearms unless the convictions did  not
result  from  any violation of AS 11.41, ten years  have  elapsed
since  being discharged from those convictions, and they  are  in
their own homes or are engaged in a lawful outdoor activity, such
as  hunting,  that requires carrying firearms); Caron  v.  United
States,  524  U.S. 308 (1998) (holding that state prohibition  on
handgun   possession  by  convicted  felons   triggered   federal
prohibition on firearm possession by convicted felons).  But  see
United  States v. Flores, 118 F. Appx 49, 52-53 (6th  Cir.  2004)
(holding  that state prohibition on a convicted felons  right  to
obtain  a license or permit to carry concealed firearms  did  not
trigger  federal prohibition on firearm possession  by  convicted
felons).   Whether  Farmer  is  prohibited  from  purchasing  and
possessing  a firearm under federal law and whether the  FBI  was
therefore  correct  in  refusing  to  authorize  Farmers  firearm
purchase are not questions properly before us here.

     22     Smith  v.  CSK Auto, Inc., 132 P.3d 818, 820  (Alaska
2006) (quoting 46 Am. Jur. 2d Judgments  609 (2005)).

     23     Gilbert  v. Nina Plaza Condo Assn, 64 P.3d  126,  129
(Alaska 2003).

     24    Id.

     25    See Bauman v. State, Div. of Family & Youth Servs., 768
P.2d  1097,  1099 (Alaska 1989) (declining to require  judges  to
warn  pro  se litigants on aspects of procedure when the  pro  se
litigant has failed to at least file a defective pleading).

     26     Kohlhaas v. State, Office of the Lieutenant Governor,
147 P.3d 714, 717 (Alaska 2006).

     27     Mullins v. Local Boundary Commn, 226 P.3d 1012,  1016
(Alaska 2010).

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