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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Latham v. Palin (3/18/2011) sp-6545

Latham v. Palin (3/18/2011) sp-6545, 251 P3d 341

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

BEN LATHAM,                                    ) 
                                               )       Supreme Court No. S-13526 
                        Appellant,             ) 
                                               )       Superior Court No. 3AN-08-12168 CI 
        v.                                     ) 
                                               )       O P I N I O N 
GOVERNOR SARAH PALIN and                       ) 
ALASKA ATTORNEY GENERAL                        )       No. 6545 - March 18, 2011 
TALIS COLBERG,                                 ) 
                                               ) 
                        Appellees.             ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Sharon L. Gleason, Judge. 

                Appearances:   Ben   Latham,   pro   se,   Anchorage,   Appellant. 
                John     W.    Erickson,     Jr.,  Assistant    Attorney     General, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for Appellees. 

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

                FABE, Justice. 

I.      INTRODUCTION 

                Ben Latham sued the governor and attorney general for failing to challenge 

the constitutionality of 1995 legislation that modified the jurisdiction of the court of 

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appeals to hear excessive sentence appeals.      The superior court dismissed Latham's 

lawsuit on the grounds of res judicata and collateral estoppel.  Latham now appeals. 

              This is Latham's third lawsuit related to the 1995 legislation.      In 1998 

Latham filed an application for post-conviction relief seeking to withdraw a plea entered 

prior to the 1995 legislation.   Latham argued that he had entered the plea in reliance on 

rights that were stripped by the legislation.  The application was denied on the ground 

that Latham was not affected by the 1995 legislation.     In 2006 Latham brought a class 

action lawsuit against the Alaska Public Defender Agency, past and present governors, 

and others, challenging the constitutionality of the 1995 legislation and the failure of 

public defenders to inform criminal defendants of the changes brought by this legislation. 

Class certification was denied and the action was dismissed. 

              We affirm the superior court's order dismissing Latham's current lawsuit. 

Prior litigation has conclusively established that Latham was not injured by the 1995 law. 

To the extent that Latham's claims are predicated on injury from that law, they are 

precluded by collateral estoppel.    To the extent his claims are not predicated on harm 

from the 1995 law, they are barred by the doctrine of discretionary immunity. 

II.    FACTS AND PROCEEDINGS 

       A.     Facts 

              The history of Latham's earlier litigation was set forth in our unpublished 
opinion,Latham v. Alaska Public Defender Agency.1      We repeat that opinion's summary 

verbatim. 

                     In 1986 Ben Latham was convicted of robbery in the 
              first degree and criminal mischief in the second degree for 
              robbing a grocery store and damaging the stolen car in which 
              he attempted to flee the scene of the crime.  Upon conviction, 

       1      Mem. Op. & J. No. 1254, 2006 WL 1667661 (Alaska, June 14, 2006). 

                                            -2-                                        6545 

----------------------- Page 3-----------------------

he pled no contest to a second charge of criminal mischief for 
an unrelated incident, but reserved the right to appeal the trial 
court's decision not to suppress an electronically recorded 
conversation       in  which    he   admitted    to  all  three   crimes. 
Latham was sentenced to seven years of imprisonment for the 
robbery, and to terms of one and a half years each for the 
criminal      mischief     convictions.     The     criminal    mischief 
sentences, which were suspended, were concurrent with each 
other but consecutive to the robbery sentence. Thus, his total 
sentence was eight and a half years, with one and a half years 
suspended.       Latham   appealed   both   his   conviction   and   his 
sentence, but the court of appeals affirmed. 

        In 1994, before his probation for the 1986 conviction 
ended, Latham was convicted of another charge of criminal 
mischief in the second degree.  The state moved to revoke his 
probation. The superior court found that Latham had violated 
his probation, but rather than sentencing him to any of the 
suspended jail time, it extended his term of probation by an 
additional year.   Latham claimed on appeal that the sentence 
was   excessive,   but   his   claim   was   dismissed   for   lack   of 
jurisdiction.   The court of appeal s affirmed this decision, and 
denied Latham's motion for reconsideration, noting that it did 
not have sentencing appeal jurisdiction in cases where no 
prison sentence had been imposed.            Latham did not petition 
for discretionary sentence review in this court. 

        Latham then sought post-conviction relief, claiming 
that   a   1995   law   changing   the   jurisdiction   of   the   court   of 
appeals effectively eliminated his right to appeal his sentence, 
a   right   upon   which   he   had   relied   when   entering   a   plea   in 
 1986.   He therefore sought leave to withdraw the 1986 plea. 

         The court of appeals, reviewing the superior court's 
denial     of   Latham's     petition    for  post-conviction       relief, 
summarized the 1995 legislation as follows: 

        In    1986,    AS    12.55.120(a)     stated   that   "[a] 
         sentence of imprisonment lawfully imposed by 
        the superior court for a term or for aggregate 
        terms of one year or more may be appealed to 

                                   -3-                                              6545
 

----------------------- Page 4-----------------------

        the   court   of   appeals   by   the   defendant   on   the 
        ground that the sentence is excessive."   (At that 
        time,   Appellate   Rule  215(a)   provided   that   a 
        defendant could appeal a sentence of 45 days or 
        more.)          After     the    1995      amendments, 
        AS   12.55.120(a)   stated   that   "[a]   sentence   of 
        imprisonment lawfully imposed by the superior 
        court     for   a   term   or   for   aggregate      terms 
        exceeding         two     years     of    unsuspended 
        incarceration for a felony offense . . . may be 
        appealed       to  the   court    of   appeals    by    the 
        defendant   on   the   ground   that   the   sentence   is 
        excessive . . . ."      The statute also limited the 
        ability of a defendant to bring a sentence appeal 
        when the sentence was imposed "in accordance 
        with a plea agreement." 

Because       Latham      was    not   sentenced      to  any    term    of 
imprisonment when his probation was extended, the court of 
appeals   held   that   he   was   not   entitled   to   bring   a   sentence 
appeal under either version of AS 12.55.120(a), or even under 
the more lenient terms of Appellate Rule 215(a).  It therefore 
affirmed the decision of the superior court.  Latham appealed 
to this court, which denied his petition without issuing an 
opinion. 

        In   its   denial   of   post-conviction   relief,   the   court   of 
appeals provided a detailed procedural history of Latham's 
appeals,   and   noted   that   Latham's   previous   appeal   lacked 
merit in light of its holding in Amin v. State.             In Amin, the 
court of appeals held that the application of the post-1995 
version of AS 12.55.120(a) to crimes committed before 1995 
did not violate the ex post facto clauses of the United States 
and Alaska Constitutions. 

        Latham then brought a civil action in superior court 
purporting to represent himself, several other named parties, 
and "all other [p]ersons who are now or have been or will be 
similarly situated, John Doe 1-50,000[], [and] Jane Doe 1- 
50,000."   Adassa Zaire Amin, the defendant in the case cited 

                                    -4-                                              6545
 

----------------------- Page 5-----------------------

        by the court of appeals, and Dallas Floyd, one of the named 
        plaintiffs in Latham's first filing, subsequently joined the case 
         as plaintiffs.    The lawsuit named a number of defendants, 
         including the Alaska Public Defender Agency; the Alaska 
         Office of the Public Advocate;  several   attorneys   who   had 
        represented Latham and the other named plaintiffs; hundreds 
         of   unnamed      parties    who    were    employed      by   the   Public 
         Defender Agency and the Office of the Public Advocate; the 
         State    of   Alaska;     and   present     and   past    governors     and 
         attorney[s] general[] of Alaska. 

                 Latham       asserted     several    claims,    including      legal 
        malpractice for failing to advise him of the changes in the 
         1995     statute;   a   massive     conspiracy      "to   violate   Alaska 
         [r]esidents['] civil rights that are guaranteed under the . . . 
         [d]ue [p]rocess and equal protection [clauses]"; federal civil 
        rights   violations;   and   violation   of   the   state   ex   post   facto 
         clause.   All of these claims, and the new allegations raised in 
         Latham's amended complaint, were predicated on Latham's 
         claim that the 1995 legislative changes had deprived him of 
        his right to appeal his sentence. 

                 Latham sought compensatory damages amounting to 
         over $100 billion in addition to requesting class certification; 
         an   order   from   the   superior   court   declaring   several   Alaska 
         statutes   unconstitutional;   the   disbarment   of   all   defendant 
         attorneys for a  term of six years; and the voiding of all plea 
         agreements affected by the 1995 legislation.  He also sought 
         "an [a]ward of punitive damages in an amount to be set by the 
         [j]ury, with due consideration for the acts complained of, the 
         annual budget of the State of Alaska, . . . [and the parties'] 
                                                       [  ] 
         [l]egal [m]alpractice . . . insurance." 2 

2       Id. *2-5 (internal citations and footnotes omitted). 

                                             -5-                                                6545 

----------------------- Page 6-----------------------

        B.      Proceedings 

                In November 2008 Latham filed the present lawsuit against then-Governor 

Sarah Palin and Attorney General Talis Colberg.               Latham alleged that the defendants 

violated his due process rights by failing to challenge the 1995 legislation as a "Punitive 

Ex Post Facto Prohibited Law" or request its repeal.             Latham sought a declaration that 

the 1995 statute was invalid (among other declaratory relief) and one million dollars in 

compensatory damages from each defendant.  Latham filed a first and second amended 

complaint   in   January   2009.    In   the   first  amended   complaint,   Latham   increased   his 

damages claim to ten million dollars.           In the second amended complaint, he further 

increased his damages claim to one billion dollars and added a claim for violation of 

equal protection. 

                The defendants moved to dismiss the lawsuit on the grounds that Latham's 

claims were barred by res judicata and collateral estoppel and also that: (1) the 1995 

legislation   is   constitutional;   (2)   Latham's   claims   are   non-justiciable   and   barred   by 

discretionary-function immunity; (3) Latham's claims are barred by absolute immunity; 

(4) defendants owe no actionable tort duty to Latham; (5) there is no direct tort action 

under the Alaska Constitution; (6) defendants cannot be sued under 42 U.S.C.  1983 in 
their official capacities; and (7) under Heck v. Humphrey,3 Latham cannot bring a  1983 

action calling into question the legitimacy of his criminal conviction until his conviction 

is reversed or invalidated.        Latham opposed the motion to dismiss and filed a cross- 

motion for summary judgment. He also moved to amend his second amended complaint, 

attaching     a  third  amended     complaint    to  the  motion;    the  defendants    opposed     this 

amendment. 

        3       512 U.S. 477 (1994). 

                                                  -6-                                              6545 

----------------------- Page 7-----------------------

                 In April 2009 the superior court dismissed Latham's lawsuit and denied his 

motion to amend his second amended complaint on the ground that amendment would 

be futile.  The court concluded that Latham's claims "had already been fully litigated at 

least once" and were therefore barred by the doctrines of res judicata and collateral 

estoppel.   The court did not explicitly address the defendants' other defenses, although 

it found the defendants' "legal analysis . . . to be persuasive." 

III.     DISCUSSION 

         A.      Latham's Claims For Damages Are Precluded By Collateral Estoppel. 

                 Collateral   estoppel,   or   issue   preclusion,   "bars   the   relitigation   of   issues 
actually determined in [earlier] proceedings."4  We require four elements before applying 

collateral estoppel: 

                 (1)      the party against whom the preclusion is employed was 
                 a party to or in privity with a party to the first action; 

                 (2)      the issue precluded from relitigation is identical to the 
                 issue decided in the first action; 

                 (3)      the   issue   was   resolved   in   the   first   action   by   a   final 
                 judgment on the merits; and 

                 (4)       the determination of the issue was essential to the final 
                              [  ] 
                 judgment. 5 

                 It has been conclusively litigated that the 1995 changes to AS 12.55.120(a) 

did not injure Latham in any way.               In Latham's class action lawsuit, we framed the 

question   as   whether   the   1995   changes   "prevented   him   from   seeking   review   of   the 

         4       Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 n.11 (Alaska 1979). 

         5       Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1110 (Alaska 2002). 

                                                      -7-                                                  6545 

----------------------- Page 8-----------------------

superior   court's   decision   to   add   a   year   to   his   probation."6     In   denying   Latham's 

application for post-conviction relief, the superior court determined that Latham would 

have been unable to appeal his sentence as excessive under either the pre-1995 version 
of AS 12.55.120(a) or the post-1995 version.7                The court of appeals agreed with this 

ruling,8 and we denied Latham's petition for review.9  Although the state actor defendants 

in Latham's application for post-conviction relief and class action lawsuit were different, 

Latham was a party in both actions, and he is the party against whom preclusion is 
sought.10 

                 Thus, because Latham was a party to the earlier litigation, the first element 

of   collateral   estoppel   has   been   satisfied.    The   second   element,   identity   of  issues,   is 

satisfied because the issue in his earlier litigation is a necessary component of Latham's 

claims in this case. Latham's claims arepredicated on the theory that the 1995 legislative 

         6       Latham, 2006 WL 1667661, at *4. 

         7       Latham v. State, Mem. Op. & J. No. 4769, 2003 WL 22250341, at *3 

(Alaska App., Oct. 1, 2003). 

         8       Id. 

         9       Latham, 2006 WL 1667661, at *2. 

         10      The   superior   court   stated   that   the  doctrine   of   res   judicata,   rather   than 

collateral   estoppel,   would   apply   even   if   "the   defendants   named   here   are   different 
individuals   than   those   sued   by   Mr.   Latham   in  the   past   on   these   issues."    We   have 
sometimes referred to res judicata as including both issue and claim preclusion.  Indeed, 
some commentators also use the label "res judicata" to refer to both forms of preclusion. 
See FLEMING JAMES, JR. & GEOFFREY C. HAZARD, JR., CIVIL PROCEDURE  11.3 (3d ed. 
 1985).     However,   our   more   recent   decisions   make   clear   that   we   use   the   label   "res 
judicata"   to   refer   exclusively   to   claim   preclusion   and   "collateral   estoppel"   to   refer 
exclusively to "issue preclusion."  See also JACK H. FRIEDENTHAL, MARY KAY KANE, 
& ARTHUR R. MILLER, CIVIL PROCEDURE  14.2 (2d ed. 1993) ("Res judicata prevents 
relitigation of claims; collateral estoppel ends controversy over issues."). 

                                                     -8-                                               6545
 

----------------------- Page 9-----------------------

change harmed him.  He claims damages as compensation for injury done to him by the 

 1995 change.   But he is not entitled to compensation if there was no injury.  Latham's  

 1983   claims   are   similarly   predicated  on   injury.     42   U.S.C.      1983   provides   that 

government officials "shall be liable to the party injured."  Here, it has been established 

that Latham was not injured by the 1995 legislative change.  Because Latham's claims 

are premised on this injury, they are barred by collateral estoppel.  The third element of 

collateral estoppel has been satisfied because the question whether the 1995 change 

harmed Latham has been decided. The resolution of that issue was necessary to the final 

judgment dismissing Latham's action, satisfying the fourth element. Therefore, the court 

of appeals' ruling that Latham was not injured by the 1995 legislation bars Latham from 

further   lawsuits   based   on   harm   arising   from   the   alleged   unconstitutionality   of   the 
legislation.11 

        B.	     Latham's        Claims      For    Declaratory      Judgment        Are    Barred     By 
                Discretionary Immunity. 

                To the extent that Latham's claims seek declaratory judgment rather than 

damages, and thus may not be barred by collateral estoppel, they are barred by the state's 

discretionary immunity.        The Alaska Tort Claims Act (ATCA) partially preserves the 

state's sovereign immunity by providing that "an action may not be brought if the claim 

. . .   is an action for tort, and is based upon an act or omission of an employee of the state, 

exercising due care, in the execution of a statute or regulation, whether or not the statute 

or regulation is valid; or is an action for tort, and based upon the exercise or performance 

        11      The superior court denied Latham's motion to amend his second complaint. 

Because Latham's claims are barred by collateral estoppel, we agree with the superior 
court that such an amendment would be "futile."                See Krause v. Matanuska-Susitna 
Borough, 229 P.3d 168, 176 (Alaska 2010). 

                                                   -9-	                                              6545 

----------------------- Page 10-----------------------

or   the   failure   to   exercise   or   perform   a   discretionary   function   or   duty."12  We   have 

previously held that a defendant's immunity will bar a claim seeking declaratory relief.13 

We do so again here. 

                We conclude that Latham's declaratory judgment claim is an "action for 

tort"   and   that  the  government       acts  he challenges      involved    the  performance      of   a 

"discretionary function" within the meaning of the ATCA.                 Latham never disputes that 

his claim is a tort action, and his pursuit of punitive damages labels his claim as tort- 
based.14   As for the government acts he challenges,             Latham alleges that the failure of 

Governor Palin and Attorney General Colberg to challenge the 1995 change violated his 

constitutional rights.      We have held that discretionary immunity protects "government 
decisions entailing planning or policy formation."15  In State v. Abbott, we adopted the 

planning-operational test to determine whether a state act or omission was discretionary 
or not.16  In Abbott, we explained the difference between acts that involve planning and 

acts   that   are   operational:   "The   planning  level   notion   refers   to   decisions   involving 

questions of policy, that is, the evaluation of factors such as the financial, political, 

        12      AS 09.50.250(1); see also RESTATEMENT (SECOND) OF TORTS  895D(3) 

(1979) ("A public officer acting within the general scope of his authority is not subject 
to tort liability for an administrative act or omission if . . . he is immune because engaged 
in the exercise of a discretionary function . . . .") (emphasis added). 

        13      Gates v. City of Tenakee Springs, 822 P.2d 455, 458 (Alaska 1991) ("There 

is no merit to Gates' argument that immunity should not apply because her claim is for 
declaratory relief."). 

        14      See Walt v. State, 751 P.2d 1345, 1354 (Alaska 1988) (explaining that only 

tort claims can result in punitive damages). 

        15      Industrial Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983). 

        16      498 P.2d 712, 721 (Alaska 1972). 

                                                  -10-                                             6545
 

----------------------- Page 11-----------------------

economic, and social effects of a given plan or policy. . . . The operations level decision, 

on the other hand, involves decisions relating to the normal day-by-day operations of the 
government."17     Acts of planning are entitled to discretionary immunity; operational acts 

are not. 

                Any   decision   by   Governor   Palin,  and   her   appointee   Attorney   General 

Colberg, was an act of planning.  A decision not to challenge the 1995 law was a high- 

level policy choice.   It was not the execution of "day-to-day" operations of government. 
We   have   held   that   such   a   "policy   judgment   and   decision"   is   discretionary.18 Any 

decision by Governor Palin and Attorney General Colberg not to challenge the 1995 law 

was a "policy judgment" on the merits of the 1995 law.               Their decision was therefore 

discretionary within the meaning of the ATCA. 

IV.     CONCLUSION 

                For the reasons set forth above, we AFFIRM the judgment of the superior 

court dismissing this lawsuit. 

        17      Id. at 720 (quoting Swanson v. United States, 229 F. Supp. 217, 220 (N.D. 

Cal. 1964)). 

        18      Id. at 718. 

                                                 -11-                                              6545 
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