NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HENRY GEORGE, )
) Court of Appeals No. A-5930
Appellant, ) Trial Court No. 4BE-94-201 Civ
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1545 - September 5, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: Scott Jay Sidell, Anchorage, for
Appellant. G. Blair McCune, Assistant Public Defender, and John B.
Salemi, Public Defender, Anchorage, for the Alaska Public Defender
Agency, amicus curiae. Cynthia M. Hora and Timothy W. Terrell,
Assistant Attorneys General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Joannides, District Court Judge.
MANNHEIMER, Judge.
Under Alaska law prior to July 1995, indigents who wished
to commence litigation against the State could apply to the courts
for a total waiver of the normal filing fee under Alaska
Administrative Rules 9(f) and 10. In the 1995 legislative session,
however, the Alaska legislature enacted a statute, AS 9.19.010,
which limits the courts' authority to waive filing fees in lawsuits
brought by prisoners against the state government. See 1995 SLA,
ch. 79, sec. 1. Under this new law, a court must in all cases
require
the prisoner to pay a filing fee "equal to 20 percent ... of the
average monthly deposits made to the prisoner's [prison] account ...
or the average balance in that account", whichever is greater
(unless this calculation yields a figure larger than the normal
filing fee). See AS 9.10.010(d).
Henry George is a prisoner who unsuccessfully sought post-
conviction relief in the superior court and who now wishes to pursue
an appeal to this court. Under Alaska Administrative Rule 9(a)(1),
the filing fee for an appeal to this court is $100. Claiming
indigency, George lodged his appellate pleadings with no filing fee.
The State asked this court to dismiss George's appeal unless he paid
a filing fee under AS 9.19.010. (According to the financial
information George has submitted, his minimum filing fee under this
statute would be $2.21.) George responded by asserting that
AS 9.19.010 is unconstitutional and that he should be able to pursue
this appeal without paying any fee.
For the reasons explained in this opinion, we conclude
that AS 9.19.010 is constitutional. Therefore, even though George
is not able to pay the full $100 filing fee, he must apply for an
exemption under AS 9.19.010, and he is subject to the minimum fee
set by that statute.
Explanation of the statute at issue here
AS 9.19.010 governs the filing fees that prisoners must
pay to commence litigation against the State. [Fn. 1] AS
9.19.010(a) declares that, with the exception of claims under
AS 23.20 (the Alaska Employment Security Act), a prisoner who
commences litigation against the state must pay the full prescribed
filing fees unless "the court exempt[s] [the] prisoner from paying
part of those fees [upon a finding of] exceptional circumstances".
A prisoner seeking this partial exemption must submit (A) complete
information concerning his or her income, assets, and liabilities;
(B) an explanation of the circumstances that prevent the prisoner
from paying full filing fees; and (C) an explanation of the
prisoner's claim against the State, including the underlying facts.
AS 9.19.010(b)(1). The prisoner must also provide the court with
a certified copy of the prisoner's prison account statement for the
preceding six months. AS 9.19.010(b)(2). The court has the
authority to require the prisoner to provide additional
documentation or financial information. AS 9.19.010(b)(3).
Based on this information, "the court may grant an
exemption from part of the applicable filing fees if the court finds
that exceptional circumstances prevent the prisoner from paying full
filing fees". AS 9.19.010(c). The statute does not define
"exceptional circumstances" except by exclusion: "Imprisonment and
indigency do not constitute exceptional circumstances if the
prisoner has available income or resources that can be applied to
the filing fee." Id.
If the court finds exceptional circumstances, the court
can exempt the prisoner from paying the normal fee, but the court
must require the prisoner to pay at least a minimum partial fee.
This minimum fee is set at twenty percent of (1) the monthly average
of the deposits made to the prisoner's account, or (2) the average
monthly balance of that account, whichever is larger. AS 9.19.-
010(d). (Of course, if this calculation yields a figure greater
than the normal filing fee, the prisoner need pay only the normal
fee. Id.)
After the court determines the amount of the filing fee
that the prisoner must pay, the prisoner must normally pay this fee
within 30 days or the prisoner's pleadings will not be accepted for
filing. AS 9.19.010(e). However, the court has the authority to
extend this 30-day deadline. Id.
Procedural Due Process
George asserts that AS 9.19.010 is too vague to satisfy
the demands of due process. He points out that the statute
authorizes courts to waive the normal filing fee if a prisoner
proves "exceptional circumstances", but the statute then fails to
define "exceptional circumstances" (except to declare that imprison-
ment and indigency do not, by themselves, constitute exceptional
circumstances). George contends that, without firm criteria for
defining exceptional circumstances, "[u]neven application [of the
statute] is a virtual certainty".
Reading AS 9.19.010 as a whole, it is obvious that the
phrase "exceptional circumstances" refers to the circumstances other
than imprisonment and indigency that "prevent the prisoner from
paying full filing fees". AS 9.19.010(c). Under AS 9.19.010(b),
a prisoner seeking exemption from the normal filing fee must provide
the court with "the prisoner's complete financial situation,
including the prisoner's income, assets, and court-ordered
payments", as well as a description of "the circumstances that
prevent the prisoner from paying full filing fees". AS 9.19.-
010(b)(1).
At first blush, it may seem strange for the legislature
to declare that a prisoner's "indigency" does not constitute a
sufficient reason to waive the normal filing fee. However, the
definitions of "indigency" contained in the Alaska statutes and
court rules focus on a person's ability to hire private counsel.
[Fn. 2] Many people with regular incomes will be found "indigent"
under these definitions, even though they could afford to pay a $100
filing fee if that were the only expense of litigation. We conclude
that the legislature used the phrase "exceptional circumstances" in
AS 9.19.010 to clarify that, for the purpose of granting filing fee
exemptions, the focus of the inquiry should be on the person's
ability to pay the filing fee, not their ability to pay for private
counsel.
George correctly notes that the statute does not prescribe
a precise standard of how penniless a prisoner must be before a
court should waive the normal filing fee. Because of this lack,
George contends that "judges are free to decide, without any legally
fixed standards, whether an exemption is warranted". We do not
agree.
The question to be decided is whether the prisoner, given
his or her income, assets, and liabilities, can afford to pay the
normal filing fee. This question will ultimately turn on the
financial situation of the individual prisoner. In this respect,
the filing fee determination is similar to the determination of
eligibility for appointed counsel under AS 18.85.120(b) and AS 18.-
85.170(4). The same flexible approach is required: a court must
examine a person's expenses, determine which ones are necessary,
then compare those necessary expenses to the person's income and
accumulated assets. Just as AS 18.85.170(4) defines "indigency"
without specifying dollar amounts and without providing specific
guidelines for income or expenses, we believe that the concept of
"exceptional circumstances" can pass constitutional muster without
these specifics.
George contends that AS 9.19.010 contains another
procedural flaw; he asserts that the statute makes no provision for
a prisoner to be heard on the question of the fee exemption, or for
the prisoner to dispute an adverse ruling of the court. George
gleans this interpretation from the fact that AS 9.19.010(b)
requires the prisoner to file a written application for fee
exemption, and from the wording of AS 9.19.010(e), which appears to
envision that the court will issue its decision in writing.
The fact that the legislature has apparently required the
prisoner's pleadings and the court's decision to be in writing does
not mean that the legislature has prohibited the judge from holding
hearings to aid in adjudicating the issue of fee exemption. For
example, AS 18.85.120(b) requires a defendant who seeks appointed
counsel to describe his or her financial condition "in writing or
by other record", and the statute contains no specific provision for
an in-court hearing to debate the defendant's eligibility for
appointed counsel. Yet, to this court's knowledge, AS 18.85.120 has
never been construed to forbid such a hearing. We likewise see
nothing in AS 9.19.010 that forbids the superior court from holding
a hearing to investigate a prisoner's eligibility for exemption from
the normal filing fee. [Fn. 3]
Next, George contends that AS 9.19.010 is unconstitutional
because it requires prisoners to demonstrate the merit of their
claim against the State before the superior court is authorized to
exempt them from the normal filing fee. It is true that, when a
prisoner files for exemption from the normal filing fee,
AS 9.19.010(b)(1)(C) requires the prisoner to include a statement
describing "the nature of the action or appeal and specific facts
that would, if proven, state a claim on which relief can be granted
or [that would] entitle the prisoner to reversal on appeal".
However, the court's decision whether to exempt the prisoner from
the normal filing fee does not turn on or involve this information.
AS 9.19.010(c) directs the court to decide whether
"exceptional circumstances prevent the prisoner from paying full
filing fees". This paragraph of the statute does not suggest that
the filing fee decision involves the merits of the prisoner's
underlying cause of action against the State. Instead, subsection
(c) speaks only of the financial aspects of the prisoner's
situation: the court is to determine "if the prisoner has available
income or resources that can be applied to the filing fee".
We agree with George that, if AS 9.19.010 conditioned a
filing fee exemption on the superior court's evaluation of the
probable merits of the prisoner's contemplated lawsuit, the statute
would potentially pose serious constitutional difficulties. Compare
Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973) (holding that a
person seeking post-conviction relief is entitled to the assistance
of an attorney before responding to a motion for judgement on the
pleadings); Douglas v. California, 372 U.S. 353, 357; 83 S.Ct. 814,
816; 9 L.Ed.2d 811 (1963) (striking down California's procedure of
appointing appellate counsel for indigent defendants only after the
appellate court independently examined the record and concluded that
it would be helpful to the defendant or to the appellate court to
have counsel appointed). However, we do not construe AS 9.19.010
to require prisoners to demonstrate the probable merit of their
lawsuits. Similarly, we do not believe that the statute authorizes
the superior court to deny a fee exemption on the basis that the
prisoner's lawsuit, as preliminarily described, appears to lack
merit.
For these reasons, we reject George's various due process
attacks on the procedures established in AS 9.19.010. We now turn
to George's second main attack on the statute his claim that it
unconstitutionally discriminates against indigents who are prison
inmates.
Equal Protection
As noted above, Alaska courts have traditionally been
authorized to waive filing fees for all indigent litigants. Since
the enactment of AS 9.19.010, indigent litigants have been divided
into three groups for purposes of assessing filing fees.
The first group is composed of indigents who are not
pursuing "litigation against the state" as defined in AS 9.19.-
100(1). For these litigants who are suing someone other than the
State, or who are suing the State about something unrelated to a
criminal charge or their status or treatment as a prisoner, the law
relating to filing-fee waivers remains unchanged. A court may waive
the filing fee in its entirety, regardless of whether the litigant
is a prisoner.
The second group is composed of indigents who wish to
pursue "litigation against the state" but who are not prisoners.
For indigent non-prisoners, the law relating to filing-fee waivers
again remains unchanged; that is, a court may waive the fee in its
entirety.
The third group is composed of indigent prisoners who wish
to pursue "litigation against the state". For these litigants,
AS 9.19.010 limits a court's ability to grant an exemption from
filing fees.
George does not challenge the legislature's distinction
between persons pursuing litigation against the state and persons
pursuing other litigation. However, George challenges the distinc-
tion between indigent non-prisoners and indigent prisoners.
When adjudicating an equal protection claim under Article
I, Section 1 of the Alaska Constitution, the basic question is
whether similarly situated people are being treated the same. Often
(as in this case), it is clear that the legislature is treating one
group of people differently from another, and the court's real task
is to see whether there is in fact a relevant difference between the
two groups. If there is a relevant difference, then the court's
next task is to examine how the legislature's classification hurts
the disadvantaged group of people, and then to judge the
significance of this legislated disadvantage. If the legislature's
action adversely affects important individual rights, then the
legislature's goal must be correspondingly important, and the
classification drawn by the statute must be closely tailored to
achieving that goal. Conversely, if the legislation affects only
lesser rights or interests, then the legislation can rest on a
lesser goal, and the means chosen to achieve that goal can be less
precise. Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-
270 (Alaska 1984).
George contends that there is no good reason for the
legislature's decision to divide indigent people into two groups,
treating prisoners differently from non-prisoners. To evaluate this
claim, we first must examine what the legislature was trying to
accomplish when it enacted AS 9.19.
AS 9.19 was included as part of 1995 House Bill 201, a
legislative proposal that was initiated by the governor under
Article III, Section 18 of the Alaska Constitution. The governor's
transmittal letter that accompanied HB 201 contains an explanation
of the filing fee provisions:
I am transmitting a bill that addresses
many of the problems arising from prisoner litigation, sentence
appeals, and frivolous or extremely tardy post-conviction relief
motions. This bill is intended to ensure that offenders [desist
from] endless "recreational" litigation.
... Frivolous litigation filed by
prisoners misallocates resources of the judiciary, the Department
of Law, the Public Defender's Office, the Office of Public Advocacy,
the Department of Corrections, and the public.
1995 House Journal 488-89.
One could hardly dispute the propriety of the
legislature's interest in limiting or discouraging frivolous
lawsuits. The real question is whether it is fair to single out
prisoners as a significant source of frivolous litigation.
One of the axioms of economic theory is that people are
generally more likely to purchase goods and services, or to purchase
more of them, as the price of those goods or services goes down.
World Book Encyclopedia (1985), "Supply and Demand" (author: Robert
Dorfman), Vol. 18, p. 796. As many experienced lawyers might
attest, this rule applies to lawsuits. Although some people can
afford to litigate endlessly, and other people are by temperament
inclined to litigate regardless of expense, most people will
consider the cost of litigation (in terms of both their money and
their time) when deciding whether to initiate or continue a lawsuit.
In effect, the cost of litigation acts as a mechanism to screen out
meritless lawsuits: people must weigh this cost against the
importance of the dispute and the likelihood of success in court.
When the price of litigation goes up, this increased cost
will ordinarily deter people from filing lawsuits over matters of
lesser importance and from pursuing lawsuits that have small chance
of success. Thus, the expense of litigation actually benefits
society up to a point. The darker aspect of litigation expense
is that, as litigation costs go higher, more and more people with
meritorious claims are effectively denied redress in the legal
system because they can not afford to litigate. Because access to
the legal system is so important in our society, both federal and
state governments have enacted measures to make sure that indigent
people are able to litigate at a reduced cost. See, for instance,
Alaska Administrative Rules 9(f) and 10 and the federal in forma
pauperis statute, 28 U.S.C. sec. 1915.
Allowing people to litigate at reduced cost obviously
increases the risk that people will litigate with less reason.
However, until recently, the federal and state legislatures viewed
this trade-off as beneficial on the whole. This view has now
changed, at least with regard to prisoners, because of the large
impact that prisoners' lawsuits are having on the courts.
The Alaska Legislature is not alone in deciding to
increase litigation costs for prisoners. In 1996, Congress enacted
the Prison Litigation Reform Act, 110 Statutes 1321, sec.sec. 801-
810. As described by the Fourth Circuit in Roller v. Gunn, 107 F.3d
227
(4th Cir. 1997), the federal Prison Litigation Reform Act was
enacted to deal with a flood of civil litigation initiated by
federal prisoners who were exempt from filing fees under 28 U.S.C.
sec. 1915, the federal in forma pauperis statute:
The first federal in forma pauperis ("IFP")
statute was enacted in 1892. ... Congress proposed to "open the
United States courts to ... American citizens [who hitherto have
been] excluded ... for want of sufficient money or property[.]"
H.R.Rep. No. 1709, 52nd Congress, 1st Sess. 1 (1892). [However,]
the statute's noble purpose has been threatened by a flood of
meritless lawsuits.
Unsurprisingly, prisoners proved responsi-
ble for much of this litigation. ... In 1995,
prisoners brought over 25% of the civil cases filed in the federal
district courts. [See] Administrative Office of the United States
Courts, 1995 Federal Court Management Statistics 167. In this
circuit alone, IFP filings accounted for almost half of the court's
1995 caseload, Nasim v. Warden, Maryland House of Correction, 64
F.3d 951, 954 n.2 (4th Cir. 1995) (en banc), and prisoners were
responsible for 75% of those filings. Id. at 953-54 n.1.
Roller, 107 F.3d at 230.
Congress was concerned that the effectiveness of the
federal judiciary was being compromised by a flood of prisoner
litigation. Congress also concluded that this proliferation of
prisoner lawsuits was due, in significant part, to the fact that it
was easy and essentially costless for prisoners to pursue meritless
claims. For these reasons, Congress enacted the Prison Litigation
Reform Act, which comprised a series of amendments to the in forma
pauperis statute, 28 U.S.C. sec. 1915. Roller, 107 F.3d at 230-31.
Like AS 9.19.010, the federal Prison Litigation Reform Act
applies to prisoners who file civil suits or appeals. The Act
requires the prisoner to supply the court with financial information
and a certified copy of their prison account. 28 U.S.C. sec. 1915-
(a)(1)-(2). The Act also specifies that a prisoner must pay an
initial filing fee equal to 20 percent of the average monthly
deposits to the prisoner's account or the average monthly balance
of the account over the previous six months, whichever is greater.
28 U.S.C. sec. 1915(b)(1)-(2). However, unlike the Alaska statute,
which authorizes a court to waive the rest of the filing fee, the
federal Act requires prisoners to make continuing monthly payments
equal to 20 percent of their monthly income (each time their account
balance exceeds $10) until the entire normal filing fee is paid.
Id.
According to the Congressional debate, the goal of the Act
was to
require prisoners to pay a very small share of
the large burden they place on the Federal judicial system by paying
a small filing fee upon commencement of lawsuits. In doing so, the
[new Act] will deter frivolous inmate lawsuits. The modest monetary
outlay will force prisoners to think twice about the case and not
just file reflexively. Prisoners will have to make the same
decision that [other] Americans must make: Is the lawsuit worth the
price?
Statement of Senator Kyl, reported in 141 Congressional Record at
S7526 (quoted in Roller, 107 F.3d at 231).
The statistics quoted by the Fourth Circuit in Roller may
explain the legislative desire to limit prisoner lawsuits, but these
statistics alone do not fully answer George's equal protection
attack on AS 9.19.010. In particular, why did the Alaska
Legislature decide to establish a mandatory minimum filing fee for
indigent prisoners who wish to sue the government over matters
related to their "treatment as a prisoner" or related to "a criminal
charge against [them]", but not establish a minimum fee for indigent
former prisoners who, despite their release, wish to pursue the same
types of claims?
It might seem to make little difference whether an
indigent litigant is still serving a prison sentence or, instead,
has been released from prison (on bail pending appeal, on probation,
or on parole) at the time the lawsuit is filed. However, the
circumstances of an indigent prisoner are different from the
circumstances of an indigent non-prisoner.
As discussed above, the statutory definition of "indigent"
in AS 18.85.170(4) focuses on a person's ability to hire a private
attorney, pay the various associated costs of litigation, and still
meet the basic needs of themselves and their dependents. This
statutory definition of "indigent" obviously embraces a great many
people who hold jobs, who take care of dependents, and who must
spend many hours each week performing the other tasks required to
maintain a household. For indigent non-prisoners, the litigation
process itself will almost certainly represent a significant
intrusion on the person's life. Apart from out-of-pocket expense,
the litigation will generally require the person to spend hours away
from their job, from their family, and from chores, errands, and
social recreation. All of these potential costs, monetary and
temporal, will normally influence an indigent non-prisoner's
decision to initiate litigation against the government.
For an indigent who is imprisoned, however, litigation
offers a different prospect:
Prisoners ... have their basic material needs
provided at state expense. They are further provided with free
paper, postage, and legal assistance. They often have free time on
their hands that other litigants do not possess. See Lumbert [v.
Illinois Dept. of Corrections, 827 F.2d 257,] 259 [(7th Cir. 1987)].
As a result, the federal courts have observed that prisoner
litigation has assumed something of the nature of a "recreational
activity." See, e.g., Gabel v. Lynaugh, 835 F.2d 124, 125 n.1 (5th
Cir. 1988). Whether recreational or not, there has been a far
greater opportunity for abuse of the federal judicial system in the
prison setting. See 141 Cong. Rec. S7256 (May 25, 1995) (statement
of Sen. Kyl) (noting that over one-fourth of civil cases filed in
federal district courts were filed by prisoners, and that the vast
majority of these cases ended in no relief for the prisoner).
Roller v. Gunn, 107 F.3d at 234.
Among indigents, prisoners often have the least income and
the fewest assets; that is, they often have less at stake if they
litigate and lose. Moreover, prisoners generally have the most free
time to give over to litigation. For non-prisoners, time devoted
to litigation must often be taken from the hours otherwise needed
for employment, household, and recreation. For prisoners, on the
other hand, the federal filing statistics suggest that litigation
often constitutes a diversion from the monotony of prison life.
Given the differing circumstances of indigent non-
prisoners and indigent prisoners, federal courts have unanimously
concluded that the filing fee requirements placed on prisoners by
the Prison Litigation Reform Act do not violate the equal protection
clause. As the Fourth Circuit observed:
There is nothing unreasonable in requiring a
prisoner ... to make some contribution, however minimal, to ask him
... to "put his money where his mouth is," it being all too easy
[for prisoners] to file suits ... if it costs nothing whatever to
do so. Such a requirement ... simply forc[es] the prisoner to
confront the initial dilemma which faces most other potential civil
litigants: is the merit of the claim worth the cost of pursuing it?
Evans v. Croom, 650 F.2d 521, 524 (4th Cir. 1981) (footnote and
citations omitted) (quoted in Hampton v. Hobbs, 106 F.3d 1281, 1285-
86 (6th Cir. 1997)). Accord, Nicholas v. Tucker, 114 F.3d 17 (2nd
Cir. 1997); Mitchell v. Farcass, 112 F.3d 1483 (11th Cir. 1997);
Roller v. Gunn, 106 F.3d at 233-34.
We agree with the reasoning of these federal decisions,
and we therefore conclude that the Alaska Legislature had a reasoned
basis for distinguishing between indigent prisoners and indigent
non-prisoners when assessing filing fees in "litigation against the
state" as defined in AS 9.19.100(1). [Fn. 4] Our next task, under
Alaska's equal protection test, is to determine how the
legislature's action has hurt the interests of indigent prisoners.
George argues that AS 9.19.010 abridges one of a
prisoner's most fundamental rights the right to seek justice in
the courts when the prisoner has been convicted unfairly. George
contends that, because AS 9.19.010 applies to petitions for post-
conviction relief and to appeals from the denial of post-conviction
relief, the statute must be deemed to place a financial burden on
an indigent prisoner's right of appeal. George bases his argument
on the assertion that a post-conviction relief proceeding is really
an extension of the original criminal proceeding, "a criminal action
relating directly to the validity of a criminal conviction".
George is mistaken in his attempt to equate post-
conviction relief proceedings with direct appeals. As Alaska
Criminal Rule 35.1(b) declares, a petition for post-conviction
relief "is not a substitute for[,] nor does it affect[,] any remedy
incident to the proceedings in the trial court, or ... direct review
of the sentence or conviction." That is, a petition for post-
conviction relief is not the equivalent of an appeal. Rather, a
petition for post-conviction relief is "a collateral attack on a
final judgment [that] must be presumed valid"; it is a civil action
that is "separate from the original criminal proceeding", Hensel v.
State, 604 P.2d 222, 230 (Alaska 1979), and it is not intended "to
take the place of a direct appeal." Higgins v. Briggs, 876 P.2d
539, 543 (Alaska App. 1994).
As we have already noted (see footnote 1), AS 9.19.010
does not burden a criminal defendant's right of appeal; the
statutory definition of "litigation against the State" does not
include direct appeals of criminal convictions. Even after the
passage of this statute, an indigent prisoner may still seek and
obtain a total waiver of the filing fee for a direct appeal of a
criminal conviction (or sentence).
However, it is hardly necessary for George to prove that
petitions for post-conviction relief are equivalent to direct
appeals of criminal convictions. The right to seek post-conviction
relief is important enough by itself. If AS 9.19.010 had the effect
of denying indigent prisoners the ability to seek post-conviction
relief, the legislature would have a very difficult time justifying
its action. The question, then, is whether the minimum filing fee
established by AS 9.19.010 effectively denies indigent prisoners
access to the courts to pursue post-conviction relief?
We conclude that the answer is no. For a truly penniless
prisoner one who has no income and no balance in their prison
account the minimum filing fee set by AS 9.19.010 is zero. For
prisoners like George, with an average monthly income of
approximately $10.00 a month and with account balances of under
$10.00, the statutory minimum fee is quite modest. As previously
mentioned, the minimum fee for George himself is $2.21.
George points out, with some justice, that a prisoner of
limited means might attach great importance to a sum this small.
He cites federal cases that have struck down fee structures that
effectively required prisoners to give up their last dollar, to
"totally deprive themselves of [the] small amenities of life".
Bullock v. Suomela, 710 F.2d 102, 103 (3rd Cir. 1983). See also In
re Epps, 888 F.2d 964, 967 (2nd Cir. 1989).
We do not believe, however, that AS 9.19.010 is such a
draconian measure. For example, George's average monthly income is
about $11.00. Paying a one-time filing fee of $2.21 may require him
to re-budget, but it will not totally deprive him of the amenities
of prison life. We note that, if George could show that paying this
fee in one lump sum would cause hardship, the statute gives the
court the authority to extend the deadline for payment.
We acknowledge that, under certain circumstances, the
minimum fee established by AS 9.19.010 may hypothetically equal or
exceed a prisoner's total resources. For example, a prisoner with
a meager monthly income might, through frugality, accumulate a
sizeable balance in their prison account, only to be forced to spend
the entire balance because of an emergency. For the next several
months, the minimum filing fee set by AS 9.19.010 might be beyond
the prisoner's means because the 6-month average balance of the
now-depleted account would still far exceed the prisoner's small
monthly income. Alternatively, a prisoner might have a relatively
high monthly income but be required to spend all of it each month
to satisfy a child-support obligation effectively leaving the
prisoner with no disposable income.
The federal Prison Litigation Reform Act has an explicit
"safety-valve" clause to handle these contingencies an explicit
provision that prisoners will still be able to litigate despite
their inability to make the minimum filing fee payments set by the
federal statute. [Fn. 5] AS 9.19.010 does not contain a similar
provision. Thus, cases may potentially arise under the Alaska
statute in which prisoners are required to pay minimum fees that
are completely beyond their reach. If such cases are presented to
us, we will then have occasion to consider whether the operation of
the statute is limited by constitutional considerations. However,
the facts of George's case do not present this problem.
For these reasons, we reject George's assertion that
AS 9.19.010 denies indigent prisoners their right of access to the
courts. The statute may require prisoners to make unwanted or
unpleasant decisions about how they will allocate their resources.
But the statute does not require prisoners to pay money they do not
have; instead, it asks prisoners to set spending priorities. [Fn.
6] As the Fourth Circuit observed,
Requiring prisoners to make economic decisions
about filing lawsuits does not deny access to the courts; it merely
places the indigent prisoner in a position similar to that faced by
those whose basic costs of living are not paid by the state. Those
living outside of prisons cannot file a lawsuit every time they
suffer a real or imagined slight. Instead, they must weigh the
importance of redress before resorting to the legal system. If a
prisoner determines that his funds are better spent on other items
rather than filing a civil rights lawsuit, "he has demonstrated an
implied evaluation of that suit"[.]
Roller v. Gunn, 107 F.3d at 233 (quoting Lumbert v. Illinois Dep't
of Corrections, 827 F.2d 257, 260 (7th Cir. 1987)).
We thus reject George's contention that AS 9.19.010
abridges indigent prisoners' right of access to the courts. The
statute does restrict an indigent prisoner's ability to file a
lawsuit at no personal cost, but indigent prisoners do not have a
legally protected right to sue the government at no cost. Under
these circumstances, AS 9.19.010 passes the equal protection test
so long as the legislature had a rational basis for drawing a
distinction between indigent prisoners and indigent non-prisoners.
We have already concluded that the legislature had a valid reason
to draw this distinction. We therefore uphold AS 9.19.010 against
George's equal protection challenge.
Conclusion
We conclude that AS 9.19.010, as construed in this
opinion, is constitutional. Therefore, within the next 30 days,
George must either pay the normal $100 filing fee prescribed in
Administrative Rule 9(a)(1) or, alternatively, apply to the Clerk
of the Appellate Courts under AS 9.19.010 and pay whatever reduced
filing fee is established under that statute. If George fails to
comply, we will grant the State's pending motion to dismiss this
appeal.
FOOTNOTES
Footnote 1:
For purposes of AS 9.19.010, "litigation against the State"
is defined as "a civil action or an appeal from a civil action or
the final decision of an administrative agency that ... [relates]
to a person's status or treatment as a prisoner or to a criminal
charge against or involving the person". See AS 9.19.100(1).
Petitions for post-conviction relief are civil actions. Hensel v.
State, 604 P.2d 222, 230-31 (Alaska 1979). Thus, AS 9.19.010
governs filing fees when a prisoner seeks post-conviction relief
under AS 12.72, see Alaska Criminal Rule 35.1(e)(1), or when a
prisoner appeals the denial of post-conviction relief. However,
AS 9.19.010 does not govern the filing fees a prisoner must pay to
pursue a direct appeal of his or her conviction.
Footnote 2:
The Alaska statutes contain only one definition of
"indigency". That definition is found in AS 18.85.120(b) and
AS 18.85.170(4), the provisions of law which define a person's
eligibility for court-appointed counsel from the Public Defender
Agency. Under this definition, a person is "indigent" if the person
"does not have sufficient assets, credit, or other means to provide
for payment of an attorney and all other necessary expenses of
[legal] representation without depriving [the person] or [their]
dependents of food, clothing, or shelter". AS 18.85.170(4).
The Alaska court rules likewise contain only one definition of
"indigency". That definition is found in Administrative Rule
12(c)(2), the rule that defines a person's eligibility for
appointment of counsel from the Office of Public Advocacy for
purposes other than acting as defense counsel in criminal cases.
Under this definition, the main criterion of indigency is income
level: a person is "indigent" if the person's income "does not
exceed the maximum annual income level established to determine
eligibility for representation by the Alaska Legal Services
Corporation". Administrative Rule 12(c) gives a court the authority
to declare a person "indigent" even when their income exceeds the
maximum amount for legal services representation. In making a
special determination of indigency, the judge must take into
account:
the funds necessary for the person to maintain employment,
to provide shelter, and to clothe, feed and care for the person and
the person's immediate family, the person's outstanding contractual
indebtedness, the person's ability to afford representation based
on the particular matter and the complexity of the case, the costs
of living and attorneys fees in different regions of the state, and
any liquid assets which could be counted as income.
That is, the judge's main focus is whether the person can afford to
hire a lawyer.
Footnote 3:
Regarding potential appellate review of the superior court's
decision, we note that the Alaska Supreme Court has held that "[a]ny
alleged violation of fundamental constitutional rights must be
afforded judicial review", even when there is no specific statutory
provision authorizing review. Owen v. Matsumoto, 859 P.2d 1308,
1310 (Alaska 1993) (recognizing inmates' right to judicial review
of Department of Corrections' administrative decisions affecting
fundamental constitutional rights). See also Brandon v. Department
of Corrections, 938 P.2d 1029, 1031-32 (Alaska 1997). If a prisoner
ever claims that the superior court has abused its fee-setting
discretion under AS 9.19.010 so as to effectively deny the indigent
prisoner his or her day in court, we do not doubt our authority to
review the superior court's decision.
Footnote 4:
We thus reject George's claim that the legislature acted
arbitrarily, in violation of the due process clause of the Alaska
Constitution (Article I, Section 7), when it established a minimum
filing fee for prisoners.
Footnote 5:
"In no event shall a prisoner be prohibited from bringing a
civil action or appealing a civil action or criminal judgment for
the reason that the prisoner has no assets and no means by which to
pay the initial partial filing fee." 28 U.S.C. sec. 1915(b)(4).
Footnote 6:
In fact, Alaska's statute (which requires payment of a
reduced filing fee) is significantly more favorable to indigent
prisoners than its federal counterpart, the Prison Litigation Reform
Act, which allows federal prisoners to begin litigating upon payment
of a reduced fee but then obliges them to continue paying (as funds
permit) until the entire normal filing fee is paid.
