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Hertz v. Storer, Dep't. of Revenue, Permanent Fund Division (8/22/97), 943 P 2d 725
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Notice: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
SIDNEY R. HERTZ, )
) Supreme Court No. S-7511
Appellant, )
) Superior Court No.
v. ) 3AN-94-11415 CI
)
ROBERT STORER, Acting ) O P I N I O N
Commissioner, Department of )
Revenue, Permanent Fund ) [No. 4871 - August 22, 1997]
Dividend Division for the )
State of Alaska, )
)
Appellee. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton M. Souter, Judge.
Appearances: Sidney R. Hertz, pro se, Seward.
Marilyn May, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
PER CURIAM.
The judgment of the superior court, on appeal from the
Department of Revenue, is AFFIRMED for the reasons expressed in its
Final Order on Appeal. [Fn. 1] The Final Order is attached hereto
as an Appendix. [Fn. 2] IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
AT ANCHORAGE
SIDNEY R. HERTZ, )
)
Appellant, )
)
v. )
)
ROBERT STORER, Acting )
Commissioner, Department of )
Revenue, Permanent Fund )
Division for the State of )
Alaska, )
)
Appellee. )
)
Case No. 3AN-94-11415
FINAL ORDER ON APPEAL
Appellant, Sidney Hertz, appeals from a decision by the
Director of the Department of Revenue denying appellant a Permanent
Fund Dividend (PFD) for 1993. Appellant's PFD was denied because
he was an incarcerated felon. Alaska Statute 43.23.005(d) provides
that convicted felons are ineligible for a year when, during all or
part of the fiscal year ending June 30 of the current year, as a
result of the conviction the individual is incarcerated. Appellant
does not dispute that he is ineligible under the terms of the
statute but challenges the statute as unconstitutional.
Appellant was a plaintiff in a 1988 suit challenging the
same statute on constitutional grounds. Appellant's case was
consolidated with other challenges to the statute. On appeal the
supreme court upheld the statute against arguments that the statute
violated the equal protection clause by improperly distinguishing
between incarcerated felons and other felons, State v. Anthony, 810
P.2d 155 (Alaska 1991) ("Anthony I"), and that the statute violated
the ex post facto clause as applied to felons who committed their
offenses prior to the effective date of AS 43.23.005(d), State v.
Anthony, 816 P.2d 1377 (Alaska 1991) ("Anthony II"). Thus,
appellant's argument that AS 43.23.005(d) is an ex post facto law
has already been rejected by the Alaska Supreme Court.
Appellant also raises some slightly different challenges
in this appeal. Appellant argues that the denial of his 1993 PFD
subjects him to double jeopardy since it is a separate punishment
in addition to his sentence of 40 years for murder. In Anthony II,
the Alaska Supreme Court found that denial of a PFD [under]
AS 43.23.005(d) was not a criminal punishment for purposes of the
ex post facto clause. It follows that appellant's argument that he
is being subjected to increased punishment, and therefore to double
jeopardy, is invalid.
Appellant also claims that he is entitled to compensation
for a taking of his interest in the wealth produced by state land.
If appellant has a protected property interest at all, he is only
entitled to procedural due process in the denial of his PFD.
Appellant does not contend, nor could he, that he was denied such
due process.
THEREFORE IT IS HEREBY ORDERED that the decision of the
Director of the Department of Revenue is AFFIRMED.
DATED at Anchorage, Alaska this 25th day of August, 1995.
/s/ Milton M. Souter
Milton M. Souter
Superior Court Judge
FOOTNOTES
Footnote 1:
The decision below is also AFFIRMED in regard to the award of
attorney's fees. The superior court properly rejected Hertz's
claim that he is a public interest litigant, and therefore not
subject to fee awards. In order to qualify as a public interest
litigant, a party must lack "sufficient economic incentive to file
suit even if the action involved only narrow issues lacking general
importance." Anchorage Daily News v. Anchorage Sch. Dist., 803
P.2d 402, 404 (Alaska 1990). Hertz had such an interest, in the
form of dividend payments which he stood to collect if his action
succeeded. Accordingly, Hertz does not qualify as a public
interest litigant.
Footnote 2:
The decision has been edited in conformity with supreme court
procedural standards.
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