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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barber v. State, Dept. of Corrections (12/6/2013) sp-6850

Barber v. State, Dept. of Corrections (12/6/2013) sp-6850

         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  



JAMES E. BARBER,                                         )  

                                                         )    Supreme Court Nos. S-14475/14504  

                          Appellant,                     )                                 (Consolidated)  

                                                         )  

         v.                                              )    Superior Court Nos. 1JU-11-00741 CI  

                                                         )                                1JU-11-00932 CI  

STATE OF ALASKA, DEPARTMENT                              )  

OF CORRECTIONS,                                          )    O P I N I O N  

                                                         )  

                          Appellee.                      )   No. 6850 - December 6, 2013  

                                                         )  



                  Appeals from the Superior Court of the State of Alaska, First  

                                                                                 

                  Judicial District, Juneau, Louis J. Menendez, Judge.  



                  Appearances:  James E. Barber, pro se, Juneau, Appellant.  

                 Nancy  R.  Simel,  Assistant  Attorney  General,  Office  of  

                  Special Prosecutions & Appeals, Anchorage, and Michael C.  

                  Geraghty,       Attorney       General,       Juneau,      for    Appellee.  

                  Cynthia  L.  Strout,  Law  Offices  of  Cynthia  L.  Strout,  and  

                  Wallace H. Tetlow, Tetlow Christie, LLC, Anchorage, for  

                                                                     

                  Amicus  Curiae  Alaska  Association  of  Criminal  Defense  

                  Lawyers.  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                              

                  Bolger,  Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  An  indigent  prisoner  appealed  two  prison  disciplinary  actions  to  the  



superior  court.    For  each  appeal  the  superior  court  calculated  a  reduced  filing  fee  


----------------------- Page 2-----------------------

                                          1  

                

pursuant to AS 09.19.010.   The prisoner failed to pay the filing fees and his appeals  



were dismissed.  



                                                                                                                     

                     The prisoner contends that he had no means of paying even the reduced  



filing fees and argues that the fee statute unconstitutionally deprived him of access to the  



                                                              

courts.  We agree with the prisoner:  As applied in this case, AS 09.19.010 prevented the  



               

prisoner  from  exercising  his  right  of  access  to  the  courts  in  violation  of  the  Alaska  



Constitution's due process provision.  We therefore reinstate the prisoner's appeals.  



II.       FACTS AND PROCEEDINGS  



          A.         First Disciplinary Action And Appeals  



                                                                                           

                     In May 2011 the State of Alaska, Department of Corrections (DOC), found  



prisoner   James   Barber   guilty   of   a   disciplinary   infraction   and   ordered   punitive  



                                                                                                          

segregation.  Barber appealed to the superior court and requested a partial filing fee  



exemption.    He  submitted  a  financial  affidavit  and  an  account  statement  from  his  



                                               2  

offender trust account (OTA).   He stated that he had over $30,000 in debt, including  



          1          AS 09.19.010 provides that prisoners must pay a full court filing fee before       



commencing litigation against the State.   But the statute allows a court to exempt part of            

the  filing  fee  if  the  prisoner   demonstrates  exceptional  circumstances.    The  statute  

provides that at a minimum, the reduced fee shall be "equal to 20 percent of the larger  

of  the  average  monthly  deposits  made  to  the  prisoner's  account  .  .  .  or  the  average  

balance in that account [for the six-month period preceding the application for a reduced  

fee], not to exceed the amount of the full filing fee required under applicable court rules."  

                                                                                                    



          2          See AS 09.19.010 (requiring prisoner to submit financial affidavit and copy  



                                                                              

of prisoner's account statement when applying for filing fee exemption).  Prisoners have  

                                                                       

two types of accounts - a normal account to which prisoners have discretionary access  

                                                     

and a forced savings account.  See 22 Alaska Administrative Code (AAC) 05.105 (2012)  

                                                                    

(providing that DOC will maintain prisoner fund accounts); AS 33.30.201(d) (providing  

                                        

that  prisoner  wages  not  subject  to  certain  deductions  and  disbursements  "must  be  

                                                                                                          

retained by [DOC] for the primary purpose of being available to the prisoner at the time  

                          

of release").  In this opinion we refer to the normal account as OTA.  See DOC Policies  

                                                                                                                 (continued...)  



                                                                 -2-                                                          6850
  


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

$2,000 in past-due child support, and $50 monthly child support payments.   He also  

                                                                                                                  



stated that he had $1,750 in assets, including two vehicles and computer equipment.  His  

                                         



OTA statement showed a January 2011 starting balance of $583.69 and a May 2011  



            

ending balance of $1.11.  DOC did not contest Barber's description of his financial  



                                                             

condition.  The superior court granted a partial exemption, reducing the filing fee to  

$33.86 to be paid within 30 days.3  



                                                                                       

                   Barber attempted to appeal the filing fee order to this court, arguing that he  



could not pay the reduced fee.  We treated the putative appeal as a petition for review.  



                   While that petition was pending, Barber failed to pay the superior court  



filing fee within the 30-day period; the superior court sent him notice that his appeal  



                                                

would be dismissed if he did not pay within approximately two weeks.  Barber asked the  



superior court to stay the dismissal, asserting that he was unable to pay the filing fee.  



DOC did not oppose the stay, but it requested that the superior court place a hold on  



                                                                                                               

Barber's OTA "so that in the event he receives any deposits to his account during the  



                                                                  

pendency of this appeal the fee will be paid."  The superior court stayed the dismissal of  



                                                                              

Barber's appeal and placed a $33.86 hold on Barber's OTA.  Barber then objected to the  



                                                                                                     

hold, arguing that it was not permitted by statute and that the superior court should take  



no action until we resolved his petition for review.  



                   DOC informed us that the superior court had placed a hold on Barber's  



OTA  for  payment  of  the  reduced  filing  fee,  and  argued  that  this  mooted  Barber's  



          2        (...continued)  



& Procedures No. 302.12 (defining offender trust account).  The court of appeals has  

held that "prisoner's account" in AS 09.19.010 means the normal account.  Baker v.  

State, 158 P.3d 836, 838, 845 (Alaska App. 2007).  Neither party suggests we construe  

                                      

it otherwise.  



          3        We are unable to determine how the superior court calculated the reduced  

                                

filing fee, but this is immaterial to the constitutional issues raised by Barber.  



                                                             -3-                                                      6850
  


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

                                                         

challenge to the reduced filing fee.  Barber amended his petition for review to challenge  



the hold.  We denied the petition for review.  



                                                         

                     But the superior court then lifted the hold on Barber's OTA, explaining that  



                                                                         

the "hold was placed on Appellant Barber's OTA account during the pendency of his  



petition for review."  The superior  court gave Barber 30 additional days to pay the  



                                                                                                                            

$33.86 filing fee.  Barber did not pay, and the superior court dismissed his appeal in  



November 2011.  



           B.        Second Disciplinary Action And Appeals  



                     In September 2011 DOC found Barber guilty of new disciplinary violations  



and  ordered  punitive  segregation.    Barber  filed  a  new  administrative  appeal  to  the  



superior court.  



                     Barber  requested  a  partial  filing  fee  exemption.    Barber  stated  in  his  



                

financial affidavit that he did not have a positive balance in his OTA, that he had no  



assets, and that he had no source of income.  He indicated that he owed $3,000 in back  



child support and owed $262 monthly in ongoing child support payments.  DOC did not  



contest Barber's description of his financial condition.  The record contains an OTA  



statement from January through June 2011 showing a starting balance of $583.69 and  



an ending balance of $0.11.  The record also contains an OTA statement from April  



                                                                      

through October 2011, showing a negative $7.14 starting balance  and a negative $8.89  



                                                            

ending balance.  It is not clear from the record which OTA statement was before the  



                                                                             

superior court, although the latter is consistent with Barber's financial affidavit.  The  

superior court set the filing fee at $33.86, due in 30 days.4  



           4         As with the first appeal, we are unable to determine how the superior court     



calculated the reduced filing fee, but this is immaterial to the constitutional issues raised   

by Barber.  



                                                                   -4-                                                                6850  


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

                    Barber did not pay the filing fee by the deadline and the superior court  

                                                   



notified him it would dismiss his appeal if he did not pay within 15 days.  Barber did not  

                                                                              



pay, and his appeal was dismissed.  



                    Barber appealed to this court, arguing that the prisoner litigation filing fee  



                                             

statute  required  a  filing  fee  in  excess  of  his  means  and  thereby  unconstitutionally  



                                                                                                     

deprived him of an appeal.  We sua sponte revived Barber's earlier petition for review  



                     

and  made  it  part  of  this  appeal.    We  requested  amicus  briefing  from  the  Alaska  



Association of Criminal Defense Lawyers.  



III.      STANDARD OF REVIEW  



                                                                                                

                    "The interpretation of a statute is a question of law to which we apply our  



independent  judgment,  interpreting  the  statute  according  to  reason,  practicality,  and  



                         

common sense, considering the meaning of the statute's language, its legislative history,  



                         5  

and its purpose."   "Whether a statute violates the Alaska Constitution is a question of  



                                                                              

law, which we review de novo, adopting the rule of law that is most persuasive in light  

of precedent, policy, and reason."6  



IV.       DISCUSSION  



          A.        Overview  



                    Barber twice was denied the opportunity to appeal DOC disciplinary action  



because he failed to pay superior court filing fees.  The prisoner litigation filing fee  

                                                                               



statute, AS 09.19.010, provides that to litigate against the state, prisoners must pay full  

                                                                                       



          5         Cutler  v.  Kodiak  Island  Borough,  290  P.3d  415,  417  (Alaska  2012)  



(quoting Henrichs v. Chugach Alaska Corp. , 260 P.3d 1036, 1040 (Alaska 2011)).  



          6         Sands ex rel. Sands v. Green, 156 P.3d 1130, 1132 (Alaska 2007) (citing   



Anderson v. State , 78 P.3d 710, 713 (Alaska 2003)).  



                                                              -5-                                                           6850  


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

                                                                        7  

filing  fees  or  qualify  for  a  partial  exemption.     Under  the  exemption,  an  indigent  



prisoner's  minimum  filing  fee  is  "20  percent  of  the  larger  of  the  average  monthly  



                                                                                                              

deposits made to the prisoner's account . . . or the average balance in that account" over  



                                                           8  

the six months preceding the litigation.   The reduced fee is due within 30 days unless  



                                                         9  

                                                                                           

the superior court grants an extension.   If the prisoner does not pay on time, "the court  



                                                                         10  

may not accept any filing in the case or appeal."                             



                    Barber asserts that he entered prison with over $500 in his OTA, but it was  

                                                                                                   



depleted  over  the  months  preceding  his  appeals  to  the  superior  court.    Because  AS  



09.19.010 requires the court to look to a prisoner's average OTA balance or deposits  



                                                                          

over the six months preceding litigation, Barber was required to pay two $33.86 filing  



                                         

fees, even though each fee exceeded his actual OTA balance at the time of filing.  Barber  



                                      

asserts that he could not pay the filing fees and therefore was prevented from appealing  



                                                                                           

the disciplinary actions.  Barber argues the statute deprived him of access to the courts  



in violation of the due process and equal protection guarantees of both the Alaska and  



United States Constitutions.  



                    Amicus curiae Alaska Association of Criminal Defense Lawyers (Amicus)  



                                                                                                                  

supports Barber.  Amicus argues that unless we hold the superior court has authority to  



waive  filing  fees  despite  AS  09.19.010,  the  statute  is  unconstitutional  as  applied  to  



Barber in the two superior court appeals.  



                                                                                               

                    DOC argues that the superior court has means to avoid unconstitutionally  



denying  court  access.    DOC  first  asserts  that  the  superior  court  can  accommodate  



          7         AS 09.19.010(a).  



          8         AS 09.19.010(d).  



          9         AS 09.19.010(e).  



          10        Id.  



                                                               -6-                                                         6850
  


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

                                                                                     

prisoners  like  Barber  by,  for  example:  (1)  extending  the  time  to  pay  a  filing  fee;  



                                                                                     

(2) allowing installment payments; or (3) directing that the prisoner take a job, request  



access to a forced savings account, or apply for a permanent fund dividend.  DOC then  



suggests that if these accommodations are not adequate, when calculating a reduced  



filing fee the superior court should not include OTA funds allocated to nondiscretionary  



                                                                                                            

expenses such as civil judgments, utilities, or child support; in essence, that "prisoner's  



                                         

account" in AS 09.19.010 should be construed to mean only OTA funds to which the  



                                                     

prisoner has discretionary access. DOC requests a remand to determine whether Barber  



can, with accommodation, pay the filing fees.  



          B.	       As     Applied         To      Barber,        AS      09.19.010          Violated        The       Alaska  

                    Constitution's Due Process Provision.11  



                                                                                            

                    Barber   argues   that   as   applied   to   his   two   superior   court   appeals,  



                                                                                     

AS 09.19.010 deprived him of state constitutional rights of access to the courts.  Amicus  



                                                                                                          

agrees with Barber and specifically argues that AS 09.19.010 violates article I, sections  



  12          13 

6    and 7       of the Alaska Constitution.  DOC agrees AS 09.19.010 has the potential to  



                             

unconstitutionally bar a prisoner's access to the courts, but, despite having waived a  



superior court challenge to Barber's stated financial condition, does not concede that the  



facts adequately demonstrate Barber could not pay the filing fee.  



          11        Because we conclude that Barber was denied court access in violation of  



the Alaska Constitution's due process provision, we do not need to address whether that  

                                                                          

denial also violated the Alaska Constitution's equal protection provision or the United  

                                                                                                

States Constitution.  



          12  

                                                 

                    Alaska Const. art. I,  6 provides:  "The right of the people peaceably to  

assemble, and to petition the government shall never be abridged."  



          13        Alaska Const. art. I,  7 provides:  "No person shall be deprived of life,  



                                            

liberty, or property, without due process of law.  The right of all persons to fair and just  

                                   

treatment in the course of legislative and executive investigations shall not be infringed."  



                                                               -7-	                                                        6850
  


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

                        We accept Barber's superior court financial statements and affidavits as true  



in light of DOC's failure to contest them in the superior court.  Therefore, Barber's  



circumstances present a situation anticipated but unresolved in Alaska:  "[C]ases may  



                                                                                                               

potentially arise under [AS 09.19.010] in which prisoners are required to pay minimum  



                                                                                 14  

                                                                                                               

fees that are completely beyond their reach."                                         Although we recently noted that "[t]he  



                            

superior  court  cannot  deny  an  indigent  prisoner's  access  to  the  court  based  on  the  



                                                 15  

prisoner's inability to pay,"                       we have not addressed AS 09.19.010's constitutionality as  

applied to prisoners who cannot pay the mandatory minimum filing fee.16  



                                                                                                                                      

                        We have recognized that prisoners have a constitutional right to access the  



                        17 

                           and have recited the proposition that "an inmate's right of unfettered  

court system 



                                             

access to the courts is as fundamental a right as any other he may hold.  All other rights  



                                                      18  

                                                             But  we  also  have  explained  that  the  right  is  "not  

.  .  .  are  illusory  without  it." 



            14          George v. State, 944 P.2d 1181, 1190 (Alaska App. 1997).   



            15          Johnson  v.  State,  Dep't  of  Corr. ,  Mem.  Op.  &  J.  No.  1442,  2012  WL  



5830213, at *1 (Alaska, Nov. 14, 2012).  



            16          We have examined the constitutionality of AS 09.19.010 only on other   



theories.    See   Brandon  v.  Corr.  Corp.  of  Am.,  28  P.3d  269,  274-79  (Alaska  2001)  

(holding AS 09.19.010 facially does not violate equal protection because of disparate   

treatment of indigent prisoners and indigent non-prisoners, statute was not adopted for       

an unconstitutional purpose, and statute facially does not unconstitutionally impair access  

to court merely by requiring a minimum filing fee); see also George, 944 P.2d at 1183- 

91 (holding AS 09.19.010 does not violate due process for vagueness, lack of express  

                                                  

provision for hearings, or requiring certain statements, and statute does not violate equal  

                                                                                                                                      

protection as between indigent prisoners and indigent non-prisoners).  



            17          See Mathis v. Sauser, 942 P.2d 1117, 1120-21 (Alaska 1997).  



            18  

                                                                           

                        Id. at 1120 (quoting Adams v. Carlson , 488 F.2d 619, 630 (7th Cir. 1973))  

(omission in original).  



                                                                           -8-                                                                     6850
  


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

                19 

                                         

absolute."          In discerning the contours of court access rights, we have looked to diverse  



                                                                                                  

constitutional analyses.  We have analyzed prisoner court access through a sliding-scale  

analysis "conceptually similar [to] . . . equal protection and due process"20 and once  



                                                      21  

                                                                                        

expressly through equal protection.                       In analyzing court access for non-prisoner civil  



                                                                                                       22  

                                                                                                             These  diverse  

litigants,  we  have  followed  a  procedural  due  process  approach. 



                                                                                                          

approaches accord with the unique nature of cases involving financial barriers to access  



                      23  

                                     

to  the  courts,          which  inherently  involve  both  equal  protection  and  due  process  



               24 

concerns. 



          19        Id. at 1121.  



          20        Id.  at 1121 & n.8 (explaining that legitimate penal interest must justify  



impairments on prisoner access to courts; the more onerous the impairment, the more  

                          

compelling must be the administrative justification); see also Brandon , 28 P.3d at 277  

                                      

("[T]he more onerous the burden on access, the higher the scrutiny." (citing Mathis , 942  

                      

P.2d at 1121)).  



          21  

                                                                                                        

                    Brandon , 28 P.3d at 275-76 (rejecting equal protection claim that prisoner  

filing-fee statute disparately treats indigent prisoners and indigent non-prisoners, and  

explaining that because those groups are not similarly situated the filing-fee statute "does  

                        

not  unconstitutionally  impinge  upon  [the  prisoner's]  right  of  access  to  the  courts"  

(quoting Tucker v. Branker, 142 F.3d 1294, 1298 (D.C. Cir. 1998))).  



          22  

                                                                    

                    See Varilek v. City of Houston, 104 P.3d 849, 853-55 (Alaska 2004) (citing  

Midgett v. Cook Inlet Pre-Trial Facility , 53 P.3d 1105, 1111 (Alaska 2002)) (holding  

non-waivable filing fee would violate procedural due process if indigent litigant were  

                       

denied access to the courts); see also State v. Native Vill. of Nunapitchuk, 156 P.3d 389,  

                                                        

405 (Alaska 2007) ("Our cases have recognized that the due process clause of the Alaska  

Constitution guarantees the right of access to Alaska's courts.").  



          23        See M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (explaining cases concerning  



right of access to appeal "cannot be resolved by resort to easy slogans or pigeonhole  

analysis" (quoting Bearden v. Georgia , 461 U.S. 660, 666 (1983))).  



          24  

                                                                                                                   

                    Id. ("The equal protection concern relates to the legitimacy of fencing out  

                                                                                                               (continued...)  



                                                               -9-                                                         6850
  


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

                    Because Barber argues that he was wholly deprived of judicial review of  



                                                                                                         

DOC's disciplinary decisions, we analyze the claimed denial of his right of access to  



                                                                    25  

court as an issue of procedural due process.                            To determine what process is due, we  



balance the following:  



                                                                               

                    (1) the private interest affected by the official action; (2) 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 (3) the government's  

                                                                

                    interest, including the fiscal and administrative burdens that  

                    additional   or   substitute   procedural   requirements   would  

                              [26] 

                    entail.  



                                                                       

                    We therefore turn first to the right Barber seeks to vindicate.  Prisoners have  



                                                                                           27  

                                                                                                        

a right to "adequate, effective, and meaningful" court access.                                 This right is necessarily  



                                                                                                              

tied to the underlying claim that a prisoner seeks to bring in court:  The purpose of the  



right to court access is ensuring adequate remedies for infringements of separate legal  



          24        (...continued)  



would-be  appellants  based  solely  on  their  inability  to  pay  core  costs  .  .  .  .  The  due  

                                                           

process  concern  homes  in  on  the  essential  fairness  of  the  state-ordered  proceedings  

anterior to adverse state action.") (citations omitted).  



          25  

                                                                                              

                    See     Varilek,       104      P.3d      at   853      (analyzing         whether        non-waivable  

administrative filing fee violated procedural due process).  



          26  

                                                                                                      

                    Id. (quoting Midgett v. Cook Inlet Pre-Trial Facility , 53 P.3d 1105, 1111  

                                                                                                             

(Alaska 2002)) (internal quotation marks omitted).  In Mathis v. Sauser , 942 P.2d 1117,  

                                                                                                                   

1120-21 (Alaska 1997), we used a sliding-scale analysis for prisoner court access; the  

inquiries in that analysis are consistent with our procedural due process analysis.  



          27        Mathis , 942 P.2d at 1121 n.6 (quoting Bounds v. Smith , 430 U.S. 817, 822  



(1977)).  



                                                              -10-                                                         6850
  


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

          28  

                                                                                                                              

rights.        Thus we look not only to Barber's right to access the courts generally, but also  



to the underlying claims for which Barber sought access.  



                     Barber sought judicial review of two DOC disciplinary actions ordering  



punitive segregation.  Punitive segregation is a liberty deprivation sufficient to trigger  

the Alaska Constitution's due process guarantee,29 and Barber alleged in his superior  



                                   

court appeals that the DOC disciplinary proceedings violated his constitutional rights to  



                                                                                                                       

due process.  Although due process does not require a right to an automatic appeal from  

a DOC disciplinary action,30 "[i]f fundamental constitutional rights are alleged to be  



                                                                                                               

abridged in disciplinary proceedings, it would be the duty of the court to inquire into the  



                    31  

                                                                                                                       

allegations."            Alaska Statute 33.30.295 affirms this principle by allowing prisoners to  



                                              

obtain superior court review if they allege violations of fundamental constitutional rights  



                                           32  

                                               Barber's interest, therefore, is in accessing the courts for  

in the disciplinary process. 



appellate   review   of   alleged   constitutional   infirmities   in   the   DOC   disciplinary  



           28        See id. at 1120 n.5 (noting the right of access preserves all rights and that       



"rights without remedies are no rights at all") (citations omitted);                                    see also  Christopher  

v. Harbury , 536 U.S. 403, 414-15 (2002) ("[T]he very point of recognizing any access  

claim is to provide some effective vindication for a separate and distinct right to seek  

judicial relief for some wrong.").  



           29        Brandon v. State, Dep't of Corr. , 73 P.3d 1230, 1234 (Alaska 2003).  



           30        McGinnis v. Stevens , 543 P.2d 1221, 1236 (Alaska 1975).  



           31        Id. at n.45 (citations omitted).  



           32  

                                                                                                                                

                     AS 33.30.295(a) provides:  "A prisoner may obtain judicial review by the  

superior court of a final disciplinary decision by the department only if the prisoner  

alleges specific facts establishing a violation of the prisoner's fundamental constitutional  

                                                                          

rights that prejudiced the prisoner's right to a fair adjudication."  



                                                                 -11-                                                            6850
  


----------------------- Page 12-----------------------

proceedings.  This interest is recognized in both our precedent33 and statute.34  



                    We  have  stated  that  a  prisoner's  right  of  access  to  the  courts  is  "not  



               35                                                                                                      36 

                                                                                     

absolute,"        but nonetheless is "as fundamental a right as any other he may hold."                                    But  



                                                                                   

in claims brought by non-prisoner civil litigants we have stated that the court access right  



                                                         37  

is not "fundamental," but "important."                        That language originates from our review of  



                                                                                                            38  

court access claims in which a party sought to litigate a property interest.                                    But Barber  



                   

raises more than a property interest:  In challenging punitive segregation he raises a  



                                                                                                 

liberty interest, and in challenging the disciplinary proceedings he raises violations of his  



constitutional  due  process  rights.    And  the  right  of  court  access  often  is  of  higher  



                                                                             

importance to prisoners because they may have no avenues outside the judicial system  



                                                                              

to seek redress. As the United States Supreme Court has explained:  "Because a prisoner  



ordinarily is divested of the privilege to vote, the right to file a court action might be said  



to  be  [the  prisoner's]  remaining  most  fundamental  political  right,  because  [it  is]  



          33        McGinnis , 543 P.2d at 1236 n.45.  



          34        AS 33.30.295.  



          35        Mathis , 942 P.2d at 1121.  



          36        Id. at 1120 (quoting Adams v. Carlson , 488 F.2d 619, 630 (7th Circ. 1973)).  



          37        See State v. Native Vill. of Nunapitchuk                  , 156 P.3d 389, 405 (Alaska 2007)  



(citing Patrick v. Lynden Transp., Inc. , 765 P.2d 1375, 1379 (Alaska 1988)).  



          38        Patrick , 765 P.2d at 1376, 1379 n.3 (explaining that claimant sought to  

                                                

bring breach of contract claim and rejecting assertion that claim implicated fundamental  

                                                                 

right to travel); see also Varilek v. City of Houston , 104 P.3d 849, 854 (Alaska 2004)  

(noting  claimant  contested  land  use  ordinance  impacting  claimant's  business  and  

explaining that "access to the courts to litigate a property interest  is an 'important right' "  

                                                                                                                       

(emphasis added) (citing Patrick , 765 P.2d at 1379)); but see Native Vill. of Nunapitchuk,  

                 

156 P.3d at 405 (noting, in context of public interest litigation, that right of access is  

"important").  



                                                             -12-                                                        6850
  


----------------------- Page 13-----------------------

                                        39  

preservative of all rights."                This is true of Barber.  We conclude that Barber has a  



fundamental right to court access to challenge a DOC disciplinary proceeding affecting  



                                 

his liberty interest on the ground that DOC violated his constitutional due process rights.  



                                                                                                                        

                    We next turn to the second factor in our due process analysis:  "the risk of  



                                                  

an erroneous deprivation of such interest through the procedures used and the probable  

                                                                                              40  Because Barber was  

                                                                                                   

value, if any, of additional or substitute procedural safeguards."  



deprived of his right to access the court, the additional procedure sought and the interest  

                                                                                                           



deprived appear to be one and the same.  For that reason it is again logical to look not  

                                                                                                      



only to the deprivation of access, but also to the underlying claim:  Barber challenges  



                                                                                                                  

DOC disciplinary proceedings affecting his liberty interest on the ground that DOC  



                                                                    

violated his constitutional due process rights. We previously have recognized the limited  



nature of a prisoner's procedural rights in DOC disciplinary hearings, concluding that  



prisoners accused of infractions are "not entitled to the full panoply of rights due an  



                                                   41  

accused in a criminal proceeding."                     And we previously have expressed concern about  

the fairness of the DOC disciplinary process itself.42  In short, we are now convinced that  

                                                                              



there is a significant risk of erroneous deprivation in DOC disciplinary proceedings.  



Absent  judicial  review,  there  is  no  external  check  on  the  constitutionality  of  DOC  



          39        See McCarthy v. Madigan, 503 U.S. 140, 153 (1992) (internal quotation  



marks and citation omitted).  



          40        Varilek, 104 P.3d at 853.  



          41        McGinnis v. Stevens , 543 P.2d 1221, 1226 (Alaska 1975);                             accord Abruska  



v. State, Dep't of Corr., 902 P.2d 319, 321 (Alaska 1995).  



          42        McGinnis , 543 P.2d at 1228 n.16 (noting possibility that DOC disciplinary  

                                                                                                       

panels consisting of DOC personnel could produce a biasing effect against prisoners:  

                                         

"[u]nless the need for impartiality is constantly stressed, committee members may simply  

support other correctional officers").  



                                                             -13-                                                        6850
  


----------------------- Page 14-----------------------

                                                                                                             

disciplinary proceedings, and the consequences of an erroneous deprivation of a liberty  



                                                                                                                 

interest from an unconstitutional DOC disciplinary proceeding are of great import.  The  

risk of erroneous deprivation therefore is high, as is the value of review.43  



                                                                                         

                      Finally, we turn to the state's interest in AS 09.19.010 - discouraging  



                                                                         

frivolous litigation and requiring prisoners to pay filing fees according to their financial  



            44  

ability.        We have  described the interest in reducing frivolous prisoner litigation as  



legitimate and have explained that requiring filing fees is a constitutionally acceptable  



                                                 45  

                                                      We have stated that "[t]he provisions of AS 09.19.010  

means to further that interest. 



require the prisoner contemplating certain forms of litigation against the state to consider  



                                                                                              46  

                                                                                                   But we also have stated that  

whether it is worth the cost, just as other litigants must." 



                                                                                                      

AS 09.19.010 only requires filing fees based on a prisoner's ability to pay:  "Extensions  



                                                                                                                   

of time may be granted in order to give a prisoner the opportunity to pay.  And if the  



prisoner's account balance is low enough, he or she may be required to pay very little,  



                     47  

or nothing."             Barber's circumstances expose the gap between these two statements.   



                      Because the minimum filing fee under AS 09.19.010 is calculated as 20%  



                          

of the average balance or deposits in a prisoner's OTA over the six months preceding  



litigation, prisoners whose balances deplete over those six months to less than 20% of  



           43         See id. at 1236 n.45 ("[I]f fundamental constitutional rights are alleged to     



be abridged in disciplinary proceedings, it would be the duty of the court to inquire into                        

the allegations."); K & L Distrib., Inc. v. Murkowski , 486 P.2d 351, 357 (Alaska 1971)   

("It is the constitutionally vested duty of this court to assure that administrative action  

complies with the laws of Alaska.").  



           44         Brandon v. Corr. Corp. of Am., 28 P.3d 269, 278 (Alaska 2001).  



           45         Id. at 277-79.  



           46         Id. at 279.  



           47         Id. at 278.  



                                                                     -14-                                                                6850
  


----------------------- Page 15-----------------------

                                                                                

the average balance or deposits are required to post a filing fee in excess of their account  



            48  

balance.         And for prisoners without assets but with substantial garnishments and no  



                                                                                                                                49  

                                                   

income,  like  Barber,  extensions  of  time  provide  interminable  delay  but  no  access. 



Although the state may have a legitimate interest in reducing frivolous prisoner litigation,  



                                                                                                

due process cannot allow that interest to be furthered by barring an individual prisoner's  



court access because of an actual inability to pay.  As applied to prisoners in Barber's  



circumstances, AS 09.19.010 denies adequate procedural due process.  



          C.	       Suggested   Accommodations   And   Interpretations   Do   Not   Avoid  

                    AS 09.19.010's Unconstitutionality As Applied To Barber.  



                                         

                    DOC argues that we can avoid Barber's constitutional claims by declaring  



that the superior court has discretion to accommodate prisoners faced with filing fees  



                                                                                                       

beyond their means. DOC specifically asserts that the superior court can:  (1) extend the  



                                   

time for payment; (2) allow for payment in installments; or (3) direct the prisoner to  



           

apply for a prison job, seek permission to access funds in a forced savings account, or  



                

apply for a permanent fund dividend.  DOC asserts that these accommodations may be  



used alongside a stay of the disciplinary action.  



                                                                                                                            

                    The only accommodation AS 09.19.010 expressly provides the court is the  



                                                                                           50  

                                                                                               It is logical to conclude  

ability to grant an extension of time for paying the filing fee. 



                                                                                            

that this also encompasses the discretion to allow installment payments.  But extensions  



                                                         

and installment payments provide no relief for prisoners with no reasonably foreseeable  



          48	       See AS 09.19.010(d).  



          49        See AS 09.19.010(e) ("If timely payment is not made, the court may not   



accept any filing in the case or appeal.").  



          50        AS 09.19.010(e) ("[T]he case or appeal will not be accepted for filing if  



payment of a filing fee is not made within 30 days . . . unless the time for payment is  

                                              

extended by the court.").  



                                                              -15-	                                                        6850
  


----------------------- Page 16-----------------------

                                        51  

                                                                       

income to  make payment.                     Delay does not provide constitutionally  adequate  court  



access to prisoners without funds or income.  Nonetheless, extensions or installments  



may  be  relevant  considerations  on  remand  -  though  Barber  earlier  informed  the  



superior court that he had no source of income, Barber states that he now has a job at the  



prison.  



                                                                                                                        

                    DOC's other suggested accommodations - directing a prisoner to apply  



for a job, seek permission to access funds in the prisoner's forced savings account, or  



apply for a permanent fund dividend - seem unlikely to impact a determination whether  



                                                                      

a prisoner has funds to pay a filing fee.  As to directing a prisoner to seek employment,  



                                                                                                                        

a prisoner's employment status is a valid consideration in determining whether to grant  



                                         

an extension or allow for installment payments, but it may be problematic to order a  



                                                                                                        

prisoner to seek employment.  Because Barber states that he now  holds a job at the  



prison,  we  do  not  presently  need  to  rule  on  the  appropriateness  of  this  suggested  



                                                                                          

accommodation.  As to directing a prisoner to seek access to a forced savings account,  



                                                                                                               52  

                                                                                                                   And as to  

DOC policy prohibits  using those funds to calculate or pay filing fees. 



                                                                 

directing prisoners to apply for permanent fund dividends, many prisoners have no right  



          51        See  id. ("If timely payment is not made,                   the court may not accept any filing     



in the case or appeal.") (emphasis added).  



          52        DOC Policies & Procedures No. 304.01(VII)(B)(2) ("Mandatory savings  



may not be used to either calculate or pay court-ordered filing fees as determined by  

                                                                                                  

AS 09.19.010."); see also AS 33.30.201(d) (providing certain funds "must be retained  

by  [DOC]  for  the  primary  purpose  of  being  available  to  the  prisoner  at  the  time  of  

release," but noting DOC may "permit the prisoner to draw on a portion of that money  

                                                                                                 

for other purposes that [DOC] considers appropriate"); Baker v. State , 158 P.3d 836,  

844-45  (Alaska  App.  2007)  (holding  forced  savings  balance  could  not  be  used  to  

calculate minimum filing fees, but noting that does not bar DOC from authorizing filing  

                                                                                         

fee payment from forced savings).  



                                                              -16-                                                         6850
  


----------------------- Page 17-----------------------

                                             53  

to a permanent fund dividend.                    We are not persuaded that the tenuous possibility of  

                                



such accommodations should prevent us from ruling on Barber's constitutional right to  

                                                                                                



access the courts.  



                   DOC additionally argues that we should construe AS 09.19.010 to require  



courts  to  ignore  funds  in  a  prisoner's  OTA  that  are  allocated  to  non-discretionary  



                                                                                                       

expenditures or garnishments.  That is, DOC suggests that in looking at the OTA balance  



                      

or deposits to calculate a reduced filing fee under AS 09.19.010(d), courts should not  



count funds that were allocated to non-discretionary purchases.  We find no support for  



this construction.  

                                             54  the court of appeals ruled that when calculating "the  

                   In Baker v. State                                                                   



average balance in [the prisoner's] account," as provided in AS 09.19.010, the court  

should not look to funds in that inmate's separate forced savings account,55 but should  

                                                                          



look only to funds in the prisoner's normal account, "i.e., the money that is available,  

         

                                                                                            56  The court of appeals  

without limitation, to the prisoner for discretionary spending."  

                                                                                                 



reasoned  that  the  purpose  of  AS  09.19.010  -  reducing  "recreational"  litigation  by  

                                                                                      



forcing prisoners to choose between spending money on litigation or on discretionary  

                               



purchases - is not furthered by allowing filing fees to come from a forced savings  

                                                                                                         



          53       See AS 43.23.005(d)(2) (providing prisoners not eligible for permanent  



fund dividend if incarcerated for a felony or for a misdemeanor with a prior felony or  

                          

two or more prior misdemeanors).  



          54        158 P.3d 836 (Alaska App. 2007).  



          55       Id. at 841-45.  



          56       Id. at 842.  



                                                            -17-                                                       6850
  


----------------------- Page 18-----------------------

             57  

account.         Because the prisoner does not have discretionary access to the money in a  



                                                                                         

forced savings account, "there is no immediate 'trade-off' when money is taken out of  



                                                 58 

                                                      Thus in calculating the filing fee the court of appeals  

[that] account to pay a filing fee." 



ignored  money  in  the  prisoner's  forced  savings  account  as  well  as  money  that  was  



temporarily deposited to the prisoner's normal account and then transferred to forced  

savings.59  



                                               

                    DOC argues that we should adopt and extend Baker to non-discretionary  



OTA  deductions  such  as  child  support.    DOC  reasons  that  where  these  mandatory  



deductions "unconstitutionally erect an insurmountable barrier to an inmate accessing  



the courts," we have the authority to limit the operation of AS 09.19.010.  



                           

                    We  generally  seek  to  "narrowly  construe  statutes  in  order  to  avoid  



constitutional infirmity where that can be done without doing violence to the legislature's  



           60  

intent."         But we are "reluctan[t] to step into the shoes of the legislature and redraft  



                  61  

                                                           

legislation."            In  Baker  the  court  of  appeals  correctly  employed  tools  of  statutory  



construction to address the fact that the legislature created forced savings accounts after  



          57        Id. at 843.  



          58        Id.  



          59        Id. at 845.  



          60        State v. Blank       , 90 P.3d 156, 162 (Alaska 2004) (citation omitted); see also  



Alaskans for a Common Language, Inc. v. Kritz                            , 170 P.3d 183, 196-97 (Alaska 2007)  

(applying narrow construction to part of English-only law where supported by text and              

ballot initiative materials).  



          61  

                                                                                                  

                    Alaskans for a Common Language, Inc. , 170 P.3d at 196 (citing Gottschalk  

                                                                                 

v. State, 575 P.2d 289, 296 (Alaska 1978)); see also State, Dep't of Commerce, Cmty.  

                                  

& Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 597-98 (Alaska  

2011) (declining to expand statute beyond plain language).  



                                                              -18-                                                         6850
  


----------------------- Page 19-----------------------

                                                                                                                    

enacting AS 09.19.010 and thus would not have considered forced savings accounts in  

drafting AS 09.19.010.62  But the statute enabling the state to levy funds from an inmate's  



                                                                                                                

account to pay child support, restitution, civil judgments, violent crimes compensation,  



                                   63                                                                                                    64 

and other judgments                    was enacted in the same legislative act as AS 09.19.010.                                               The  



                                                                                                        

legislature could not have intended in a single act to permit automatic deductions from  



                                  65                                                                                                              66  

                                             

an inmate's account                   but presume that the deposits or average balance in that account 



                                           

would not reflect those transactions.  To adopt DOC's suggestion would go beyond  



merely  applying  a  narrowing  construction  and  into  the  impermissible  territory  of  



redrafting AS 09.19.010.  



                       Next DOC mentions that "this court has the common law and inherent  



                                                               

authority  to  limit  the  operation  of  AS  09.19.010  in  a  manner  that  still  furthers  the  



                                                                                                         

legislature's purpose," and cites several cases discussing a common law authority to  



                               67  

waive  filing  fees.                 Although  DOC  does  not  appear  to  expressly  argue  it,  Amicus  



            62         Baker , 158 P.3d at 841.  



            63         AS 09.38.030(f).  



            64         See Ch. 79,  1, 4, SLA 1995.  



            65         AS 09.38.030(f).  



            66         AS 09.19.010(d).  



            67         See Brown v. Pitchess, 112 Cal. Rptr. 350, 355 (Cal. App. 1974) (vacated   



13 Cal.3d 518 (1975) ("[M]andatory statutory language requiring bonds has not been     

interpreted as a limitation on the court's inherent power to grant relief                                             in forma pauperis  

in a proper case.");   Campbell v. Criterion Grp.                                  , 605 N.E.2d 150, 155-56 (Ind. 1992)  

(discussing common law authority to permit in forma pauperis  appeals absent statute to  

contrary); Melder v. Carreiro , 541 A.2d 1293, 1294 (Me. 1988) (holding district court               

had inherent authority to waive fee on appeal), superseded on other grounds, Levesque  

v. Levesque , 697 A.2d 1309 (Me. 1997);  Casper v. Huber, 456 P.2d 436, 437 (Nev.  

                                                                                                          

                                                                                                                              (continued...)  



                                                                       -19-                                                                 6850
  


----------------------- Page 20-----------------------

interprets DOC's citation as advocating a holding that Alaska courts have an inherent  



                                                                                                       

common law authority to waive a mandatory prisoner litigation filing fee.  Amicus then  



                                                    

argues  that  if  we  do  not  hold  an  inherent  authority  to  waive  filing  fee  exists,  then  



AS 09.19.010 is unconstitutional as applied to Barber.  



                    Although we may declare the common law where there is no governing  



statute  or  a  constitutional  provision,  "[w]hen  the  courts  exercise  their  common-law  



                                                        

authority, the guiding principle is that they should not exercise this authority in disregard  



                                                                                 68  

of  existing  constitutional  and  statutory  provisions."                             Prior  to  the  enactment  of  



                                                                                        69  

AS 09.19.010, prisoners could seek a total filing fee waiver.                               The court of appeals has  



                                                                                      

explained correctly that AS 09.19.010 "limits the courts' authority to waive filing fees  



                                                                                                   70  

                                                                                                          Alaska  Statute  

in  lawsuits  brought  by  prisoners  against  the  state  government." 



                                

09.19.010 expressly provides that "[i]f timely payment is not made, the court may not  



                  

accept any filing in the case or appeal."  Such mandatory language precludes us from  



                                                                                                           

ruling that Alaska courts have a common law authority to waive prisoner litigation filing  



fees in their entirety.  



          67        (...continued)  



1969) (waiving filing fee on appeal although no statutory authority to do so); Silvestro  

                                                                                      

v. Almonte, 484 A.2d 900, 902-03 (R.I. 1984) (inherent authority to waive costs when  

                         

enforcing  substantial  right  and  person  filing  "absolutely  unable"  to  provide  fee);  

O'Connor v. Matzdorff, 458 P.2d 154, 160 (Wash. 1969) ("[C]ourts have found within  

                                           

their powers an inherent power to waive the prepayment of court fees, where a suitor or  

                                               

defendant has shown that he is impoverished, regardless of statutory authority.").  



          68        See Hosier v. State, 957 P.2d 1360, 1364-65 (Alaska App. 1998).   



          69        See Alaska Admin. R. 9(f)(1) ("No filing, certifying, or copying fees will  



be  charged  to  a  person  determined  to  be  indigent  under  Administrative  Rule  10.");  

                                                                                              

Alaska Admin. R. 10 (establishing procedures for determining indigency for filing fee  

exemption).  



          70        See George v. State, 944 P.2d 1181, 1182 (Alaska App. 1997).  



                                                             -20-                                                       6850
  


----------------------- Page 21-----------------------

                                          

          D.	       On Remand AS 09.19.010 Cannot Be Applied To Unconstitutionally  

                    Deny Barber Access To Court.  



                    We  note  specific  instructions  for  the  superior  court  on  remand.    The  



                                                                                                       

superior court shall recalculate Barber's mandatory filing fees under AS 09.19.010 as of  



                                                                                                                    

the date of remand.  If the mandatory filing fees exceed Barber's available funds and  



                                                                                                             

cannot be paid in a reasonable time through extensions or installment payments, the  



superior court shall allow Barber's litigation to proceed while furthering, to the best  



extent possible, the legislature's goal of requiring prisoners to bear a portion of the costs  



                                             

of litigation and to "consider whether [litigating] is worth the cost, just as other litigants  



          71  

must."       For  example,  the  superior  court  may  allow  the  litigation  to  proceed  while  



                                                                                             

placing a hold on Barber's OTA to secure the filing fees if and when funds become  

available.72  



          71	       Brandon v. Corr. Corp. of Am., 28 P.3d 269, 279 (Alaska 2001).  



          72        Barber  argued  that  a  hold  is  not  allowable  when  the  superior  court  



temporarily placed one on his account during the pendency of his petition for review.  

He asserted that the only legal basis for a hold is under AS 09.38.030(f), which provides  

                                               

that "[a]ll money in an incarcerated person's account at a correctional facility is available  

                           

for disbursement under a notice of levy . . . to satisfy [inter alia] judgments entered  

against a prisoner in litigation against the state."  He reasoned that because there was no  

                                                                                                                         

judgment against him, AS 09.38.030(f) would not apply and a hold would therefore be  

                                                                                               

untenable.  We disagree that AS 09.38.030 provides the only basis for a hold.  Should  

a prisoner seek to litigate against the state but have inadequate funds to pay a mandatory  

                                                                     

filing  fee  under  AS  09.19.010,  a  hold  could  allow  the  superior  court  to  avoid  

unconstitutionally depriving the prisoner access to court while furthering the legislature's  

purpose of requiring prisoners to "consider whether [litigating] is worth the cost, just as  

                                                                                                                          

other litigants must."  See Brandon, 28 P.3d at 279.  Such an accommodation therefore  

                                                                                

aligns with our duties to give effect to the legislature's intent and to protect the Alaska  

                                                                                              

Constitution.  Cf. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 196  

                                                                  

n.54 (Alaska 2007) ("Where a narrow construction of a statute will avoid constitutional  

                                                                                  

infirmity without doing violence to the manifest legislative intent, we will interpret the  

                                                                                                                 

                                                                                                              (continued...)  



                                                              -21-	                                                        6850
  


----------------------- Page 22-----------------------

V.      CONCLUSION  



                 For the reasons stated above, we REVERSE the superior court's dismissals  



                                                                                      

of Barber's disciplinary appeals and REMAND for recalculation of the statutory filing  



fees and further proceedings.  



        72       (...continued)  



statute accordingly." (quoting Bonjour v. Bonjour , 592 P.2d 1233, 1237 (Alaska 1979))).  



                                                    -22-                                                6850  

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