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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. State, Dept. of Corrections (1/8/2010) sp-6449
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SIDNEY HERTZ, | ) |
| ) Supreme Court No. S- 12842 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-81-05274 CI |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF CORRECTIONS, | ) |
| ) O P I N I O N | |
| ) | |
| Appellee.1 | ) No. 6449 - January 8, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Michael Spaan, Judge.
Appearances: Sidney R. Hertz, pro se, Seward.
John K. Bodick, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau for Appellees.
Before: Matthews, Eastaugh, Carpeneti, and
Winfree, Justices. [Fabe, Chief Justice, not
participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. A pro se prisoner moved for an injunction against the
Alaska Department of Corrections ordering the department to pay
gate money to all prisoners upon release as provided for in the
1990 Final Settlement Agreement (FSA) in the Cleary case, a class
action by inmates regarding prison conditions. After passage of
the Alaska Prison Litigation Reform Act (APLRA) in 1999, the
department stopped issuing gate money. The inmate argues that
the department is still bound by the FSAs gate money provisions
regardless of APLRA. The inmate also requested court-appointed
counsel in order to represent the Cleary class.
The superior court denied the inmates motion for
reinstatement of gate money, and failed to respond to the inmates
request for counsel. Because APLRA bars the inmates claim for
reinstatement of gate money, and because any error in the courts
failure to rule on the motion for appointed counsel was harmless
since the law clearly does not entitle the inmate to counsel, we
affirm the decision of the superior court.
II. FACTS AND PROCEEDINGS
Prisoner Sidney Hertz has previously come before this
court regarding the FSA.2 Hertz v. Cleary3 gives a helpful
description of the Cleary settlement:
The Cleary litigation began in 1981 as a
Civil Rule 23 class action challenging the
conditions of Alaskas correctional facilities
. . . . In January 1983, the superior court
approved the parties partial settlement
agreement. . . .
In December 1987, the superior court
appointed a standing compliance monitor to
oversee compliance with the partial
settlement agreement. Various issues
concerning compliance with and interpretation
of the partial settlement agreement were
litigated in the superior court through 1989,
when efforts at settlement were renewed. On
August 1, 1990, the negotiation efforts of
the parties and the standing compliance
monitor culminated in the proposed Final
Settlement Agreement (FSA).
The proposed FSA and an analysis of the
settlement by the attorney representing the
class were distributed to all class members .
. . . [It] was amended to address comments
from class members, including comments from
Sidney Hertz . . . . In its approval of the
FSA the superior court . . . held that the
provisions of the FSA were reasonable and in
the best interests of the class.[4]
The FSA sets out comprehensive and detailed standards
for correctional facilities and procedures, including a provision
that gate money5 be paid to prisoners at their release.6 The FSA
required the department to implement a program to provide inmates
convicted of felonies who have been released from facilities
after serving a sentence and who have not been eligible for
Permanent Fund Dividends, or who have not been able to retain at
least $150 of Permanent Fund Dividends because of mandatory
deductions, with at least $150 of gate money . . . .
In 1999, nine years after the FSA, the legislature
passed the Alaska Prison Litigation Reform Act (APLRA).7 APLRA
limits the situations in which prisoners may seek prospective
relief in lawsuits challenging prison conditions.8 Section (a)
provides: a court may not order prospective relief in a civil
action with respect to correctional facility conditions unless
the court finds that [] the plaintiff has proven a violation of a
state or federal right . . . .9 It also provides that
prospective relief ordered under a consent decree . . . shall be
terminated upon the motion of the [department] unless the court
finds that there exists a current violation of a state or federal
right and makes the findings required by (a) . . . .10
Following passage of APLRA, the department brought a
motion in superior court to terminate the FSA consent decrees.11
The Cleary prisoner class opposed the departments motion on the
grounds that APLRA was unconstitutional.12 The superior court
upheld the statute, but also held that it did not terminate the
FSA consent decrees.13 The court found that APLRA merely
terminated prospective relief, and thus was constitutional.14 The
Cleary class, of which Hertz was a member, did not appeal that
superior court decision.
Shortly thereafter, Department of Corrections
Commissioner Marc Antrim issued a memorandum terminating the
payment of gate money:
Effective October 1, 2003, the Alaska
Department of Corrections will no longer
issue gate money to felons at the time of
their release. While gate money was
initiated under the Cleary, et al. Final
Settlement Agreement, the Department is no
longer required to make the payments.
Payments of gate money were specifically
prohibited under 22 AAC 05.590 Discharge
Payments, originally made effective in 1977
and amended in 1987, which provides: Upon
release of a prisoner, the department will
not provide a discharge payment or gate money
to the prisoner. Each prisoner is entitled to
receive any work program compensation and
prisoner fund account money due, by check or
cash, at the time of release.
In January 2007 Hertz filed a Complaint for Declaratory
Judgment and Injunctive Relief For Non-compliance with the
Consent Decree. Hertz alleged several violations of the FSA. He
sought, among other things, a judgment declaring the department
in violation of the FSA for discontinuing gate money, and an
injunction requiring the department to reinstate gate money for
all prisoners, as provided by the FSA. Hertz purported to act
for the class and filed under the original Cleary v. Smith
caption. But the FSA provides that an inmate cannot represent
the class without an attorney or permission from the court to
proceed pro se.15 Although Hertz never requested permission to
proceed pro se, in April 2007 he moved the superior court to
appoint an attorney for him. Hertz later wrote to the clerk of
court requesting a ruling. The superior court never ruled on his
motion for court-appointed counsel.
In May 2007 the Department responded to Hertzs FSA
motion, arguing that APLRA barred his claim for gate money
because he failed to show the Department had violated a state or
federal right. The superior court denied Hertzs motion, holding
that Hertz has . . . failed to state a state or federal right to
gate money as required by [APLRA]. Hertz moved for
reconsideration, which the court denied. Hertz now appeals that
denial and the courts failure to appoint counsel.
III. STANDARD OF REVIEW
In cases involving statutory interpretation, we review
appeals using our independent judgment.16 Under that standard, we
will adopt[] the rule of law that is most persuasive in light of
precedent, reason, and policy.17 When previously examining the
FSA, we found that the FSAs scope and effect raise questions of
contract law that [we] review de novo.18
IV. DISCUSSION
A. Hertz Does Not Represent the Cleary Class.
As a preliminary matter, we note that although Hertz
filed under the original Cleary caption with the intent of
representing the class, he does not represent the class. Despite
the fact that this case has come to us under the original Cleary
heading, the superior court never gave Hertz permission to
represent the class.
B. The Superior Court Did Not Err in Denying Hertzs Motion
for Declaratory and Injunctive Relief Because APLRA
Applies, Hertz Failed To Prove Violation of a Federal
or State Right, and His Claim Does Not Qualify for an
Exception.
Hertzs claim for gate money fails because he demands
prospective relief, he does not allege violation of a state or
federal right, and he demands relief of indefinite duration.
APLRA declares that a court may not order prospective relief in a
civil action with respect to correctional facility conditions
unless the court finds that [] the plaintiff has proven a
violation of a state or federal right . . . . 19 To the extent
that Hertz demands relief based on ongoing enforcement of the
FSA, part (c) of APLRA provides that a court shall terminate
prospective relief ordered under a consent decree upon motion of
the department unless the court finds a current violation of a
state or federal right.20 The department properly made that motion
in August 2000.
The issue then is whether the departments
discontinuance of gate money violates a state or federal right.
Hertz argues that the FSA is a contract and that he has a
contractual right to gate money.21 The department argues that
Hertz has no state or federal right to gate money on the grounds
that no statute exists creating such a right. Both contracts and
statutes can create property rights protected by the Alaska and
United States constitutions.22 We agree with the department that
Hertz has no statute-based property right in gate money. As for
Hertzs contract-based claim, we conclude that the FSAs language
does not create a property right to prospective enforcement of
the gate money provision.
1. APLRA applies because Hertz demands prospective
relief, and to the extent the claim is based on
the FSA, the department has properly moved for
termination.
APLRA defines prospective relief as all relief other
than compensatory monetary damages.23 Hertz demands declaratory
and injunctive relief, which fall squarely into this definition.
If the superior court had granted his motion, he would not have
gotten a compensatory monetary award, but rather a court order
directing the department to take future action. Hertz remains a
prisoner, so any payment of gate money to him would have to come
in the future. Hertz himself characterizes his complaint as
being for declaratory judgment and injunctive relief. Therefore,
we conclude that Hertz requests prospective relief within the
meaning of APLRA.24
Insofar as Hertz demands continued prospective
enforcement of the FSA, the superior court effectively terminated
prospective enforcement on the departments motion in 2001. APLRA
provides that the department may move to terminate prospective
relief ordered under a consent decree.25 The department made that
motion in August 2000. The superior court granted the motion and
upheld the constitutionality of APLRA. The superior court order
specifically required that all future claims for prospective
relief under the FSA must show a current violation of a state or
federal right, as required by APLRA. The Cleary class, of which
Hertz was a member, did not appeal that order. In addition to
the departments 2000 motion, then-Commissioner Antrim issued a
memorandum declaring that the department would resume enforcement
of 22 AAC 05.590, which declares that the department will not
issue gate money.
APLRA applies to Hertzs claim for prospective relief.
2. Hertz has no state or federal right to gate money
arising either from statute or from contract.
Having concluded that APLRA applies, we next consider
whether Hertz has shown a violation of a state or federal right
as APLRA requires for prospective relief. APLRA defines a state
or federal right as arising from the United States Constitution,
the Constitution of the State of Alaska, or a federal or state
statute.26 We read Hertzs statements that he has a contractual
right to gate money as alleging that the FSA gives him a
protected property interest in gate money, or in an injunction
requiring the Department to issue gate money. Both the United
States and Alaska Constitutions protect property rights. The
Supreme Court held in Board of Regents of State Colleges v. Roth
that [p]roperty interests . . . are not created by the
Constitution. Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law-rules or understandings that
secure certain benefits and that support claims of entitlement to
those benefits.27 Alaska has adopted this same claims of
entitlement test for property rights protected by the Alaska
Constitution.28 Under this test, property rights can arise from
both statutes and contracts.29
a. Hertz has no statute-based right to gate
money.
The department correctly points out that no state or
federal statute provides for gate money. In fact, a state
regulation specifically declares that Alaska does not provide
gate money.30 Furthermore, federal courts have consistently
declined to hold that statutes create a federally protected
property right in gate money.31 Therefore, Hertz has no claim of
entitlement to gate money arising under state or federal
statutes.
b. Hertz has no contract-based right to gate
money.
Hertzs main argument is that he has a property right to
gate money arising from the FSA under a contract analysis. Like a
statute, a contract can also create property rights by giving
rise to a claim of entitlement.32 The department does not address
this argument. We conclude after a careful examination of its
language that the FSA does not create a continuing claim of
entitlement to gate money because it grants broad discretion to
the trial court to terminate or modify its terms in response to
changes in law and circumstances.
We construe consent decrees following normal principles
of contract interpretation:33
The goal of the court is to enforce the
reasonable expectations of the parties. In
determining the intent of the parties, the
court looks to the written contract as well
as extrinsic evidence regarding the parties
intent at the time the contract was made. The
parties expectations are assessed by
examining the language used in the contract,
case law interpreting similar language, and
relevant extrinsic evidence, including the
subsequent conduct of the parties.[34]
The FSA provides: The parties agree that future
questions regarding the implementation and enforcement of this
agreement shall be interpreted in a manner that gives meaning to
the intent expressed by the parties with consideration for
changes to Alaskas adult correctional facilities that may exist
at the time. Thus, we turn to the FSA itself to determine
whether the parties intended to create an indefinite entitlement
to gate money for class members.
The FSA is a comprehensive document, eighty-eight pages
in length, giving detailed provisions for all aspects of prison
life including facilities conditions and overcrowding,
operations, rights and opportunities for inmates, rehabilitation
programs, discipline, and grievances. The gate money provision
at issue here is a short paragraph on page forty-nine. Pages
seventy-eight through eighty-four deal with future monitoring,
modification and enforcement of the agreement. Although the gate
money provision is written in absolute terms (the Department
shall . . .), the seven-page section on monitoring, modification,
and enforcement gives broad discretion to the trial court to
modify the agreement in the event of changed law or
circumstances.
The FSA specifically provides that in the event of a
clear showing of material changes in circumstance or controlling
law, either party may move for relief from the FSA decree, and
that all or some provisions of [the FSA may] be vacated and/or
modified accordingly. The FSA further provides that such an
application for relief or modification shall be governed by the
principles of Civil Rule 60(b)(5) and (6). Alaska Civil Rules
60(b)(5) and (6) give discretion to the trial court. Civil Rule
60(b)(5) allows a trial court to grant relief from judgment when,
among other things, it is no longer equitable that the judgment
should have prospective application. Civil Rule 60(b)(6) allows
the trial court to grant relief from judgment for any other
reason justifying relief from the operation of the judgment. Such
justifying reasons have been found in a variety of situations,
including passage of new applicable legislation.35 By
specifically referring to Rule 60(b)(6), the parties to the
Cleary FSA showed their intent that the trial court be able to
modify or terminate enforcement of all or parts of the FSA if
governing law changed substantially.
Thus, we conclude that the parties intent was not to
guarantee that all provisions of the FSA would continue
indefinitely. Rather, the parties intended that trial court
enforcement of the FSA would be flexible and responsive to future
changes in law and circumstances. Hertz had no legitimate
expectation that the court would never change or discontinue
enforcement of the consent decree.
Furthermore, Hertz has no right to an injunction.
Federal courts have consistently refused to find a property
right in prospective enforcement of a consent decree. Like the
Alaska Prison Litigation Reform Act, the Federal Prison
Litigation Reform Act (PLRA) makes prospective relief terminable
unless the court makes written findings that prospective relief
[is] necessary to correct a current and ongoing violation of [a]
Federal right.36 After passage of PLRA, several federal courts
addressed whether PLRA violated due process by taking protected
property rights when terminating prospective enforcement of
consent decrees. These courts consistently held that inmates
have no protected property rights in injunctions enforcing
consent decrees.37
To the extent that Hertz asserts that he has a
contractual right to an injunction against the department, the
same logic applies. Because the consent decree may be modified
or terminated by the issuing court, a party never acquires a
protected property right to a continuing injunction.38
3. Hertzs claim does not qualify for an APLRA
exception
Hertz contends that APLRAs subsection .200(e), which
grants courts the ability to grant prospective relief for
certain aspects of consent decrees, should apply to the gate
money provision of the FSA.
Subsection .200(e) reads: Notwithstanding (a) of this
section, in a civil action with respect to correctional facility
conditions,[39] a court may order prospective relief as provided
in a consent decree without complying with (a) of this section,
provided the prospective relief does not continue for a period
of more than two years unless the court finds and orders that
the continuation of the relief is appropriate under the
standards in (c) of this section. Subsection .200(c), discussed
above, bars prospective relief unless the court finds violation
of a state or federal right. Part (c), also discussed above,
makes prospective enforcement of consent decrees terminable
unless the court makes the same finding.
Under subsection .200(e) the court could require the
department to abide by terms of the FSA for up to two years
without finding violation of a state or federal right.40 But
Hertz does not ask for reinstatement of gate money for only two
years. Because Hertz seeks an injunction lasting longer than two
years, this exception cannot apply to his claim.
Furthermore, this subsection permits the court to
enforce consent decrees, but does not mandate it: the court may
order prospective relief. . . .41 Even if Hertzs claim met the
two-year limit, the superior court would still have had
discretion to deny it.
C. Any Error in the Superior Courts Failure To Rule on
Hertzs Motion for Appointment of Counsel Was Harmless.
Hertz filed his motion for appointment of counsel on
April 8, 2007. He explains that he filed the motion because, as
we stated in Hertz v. Cleary, Hertz may not represent the class
pro se without court permission.42 The court did not rule on this
motion. Hertz followed up with a letter to the court on June 24,
2007. Hertz wrote: I am requesting some kind of ruling either
granting or denying my motions so we can move these problems
along.
The department contends that Hertz failed to preserve
this argument because he did nothing more to demand a ruling from
the superior court. The department cites to Millette v. Millette
for the proposition that litigants, even pro se litigants, waive
appeals of motions if they fail to take action to obtain a ruling
from the trial court.43
In Millette, as in this case, the litigant sent a
written request to the court after the court did not rule on a
motion.44 The litigant then participated in a custody hearing
before the court, but failed to raise the issue of the motion
until four days into the hearing.45 We held that because he did
not raise the courts failure to rule until well into the hearing,
the litigant did not take sufficient action to bring the motion
to the courts attention, and therefore waived the issue.46
Millette, however, is inapposite. Unlike Millette,
where the litigant had the attention of the court during his
custody hearing, Hertz took the only action that a pro se
prisoner, without a court hearing, could take: He wrote a letter
alerting the court of his pending motion. His case did not come
before the court in a hearing. Hertz therefore did take
sufficient action to notify the court of his pending motion.
Even though Hertz did not waive this issue, he is not
entitled to the relief he seeks, namely a remand back to the
trial court with directions to appoint either an attorney to
represent the class or as an alternative [appointment of] a Court
monitor to review Hertzs assertions of non-compliance with the
FSA. Because the law does not entitle Hertz to court-appointed
counsel, any error by the lower court in failing to rule on this
motion was harmless.
Any right to appointed counsel for an indigent
plaintiff must come from a statute, a rule, or the constitution.47
No Alaska statute or rule gives Hertz the right to appointed
counsel in this situation,48 nor does the Alaska Constitution.49
Finally, Hertz does not have a due process right to counsel. We
use the federal balancing test from Mathews v. Eldridge to
determine when a plaintiffs due process rights are violated by
failure to appoint counsel.50 We consider and balance three
factors:
[T]he private interest affected by the
official action; 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 finally, the governments
interest, including the fiscal and
administrative burdens that additional or
substitute procedural requirements would
entail.[51]
Property rights, particularly purely monetary
interests, are not particularly compelling private interests
under this test.52 Furthermore, although Hertz might have had a
better chance of succeeding with a lawyer, the state has strong
interests in avoiding the high fiscal and administrative burdens
of providing counsel to every inmate wishing to represent the
Cleary class.53 The balance of interests under Mathews v.
Eldridge indicates that due process did not require Hertz to have
appointed counsel.
V. CONCLUSION
Because the Alaska Prison Litigation Reform Act applies
to and bars Hertzs request for prospective relief, and because
the failure to rule on Hertzs motion for appointment of counsel
was at most harmless error because the law in that area does not
entitle Hertz to appointed counsel, the decision of the superior
court is AFFIRMED.
_______________________________
1 Hertz filed this case under the caption of the 1981
class action Cleary et al. v. Smith et al. Because he is not
authorized to represent the class (see infra Part IV.A), we have
re-named this case. See Hertz v. State, Dept. of Corr., 869 P.2d
154 (Alaska 1994).
2 See Hertz v. Cleary, 835 P.2d 438 (Alaska 1992); Hertz
v. State, Dept of Corr., 869 P.2d 154 (Alaska 1994).
3 Hertz, 835 P.2d 438.
4 Id. at 439-40.
5 Gate money refers to discharge payments [provided] to
prisoners upon their release. This gate money was part of the
financial assistance package intended to help prisoners re-
establish themselves in the community. Baker v. State, 158 P.3d
836, 838 (Alaska App. 2007).
6 The specific gate money provision takes up one
paragraph in the eighty-eight page settlement agreement (Rec.
006617-006707. Gate money provision Rec. 006668).
7 AS 09.19.200.
8 Id.
9 AS 09.19.200(a).
10 AS 09.19.200(c).
11 Cleary v. Smith, No. 3AN-81-5274 Ci. (Alaska Super.
July 3, 2001).
12 Id.
13 Id.
14 Id. (This court . . . finds that the APLRA should be
construed narrowly to affect only the prospective relief due
parties under the consent decree and not the consent decree
itself. . . .[T]his court believes it would pose a grave
constitutional question if the Alaska Legislature was attempting
to require the court to terminate a final order and judgment
rather than merely terminate the relief available under the
consent decree. As the more difficult question of
constitutionality can be avoided by construing the APLRA
narrowly to terminate only prospective relief due parties under
the consent decree but not the consent decree itself, and as
this is a reasonable interpretation of the statute, the court
adopts this interpretation.).
15 Hertz v. State, Dept. of Corr., 869 P.2d 154, 155
(Alaska 1994).
16 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc.,
101 P.3d 1047, 1048 (Alaska 2004).
17 Id.
18 Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).
19 AS 09.19.200(a). Neither party discusses whether gate
money is in respect to a correctional facility condition.
Therefore, we assume that gate money concerns a correctional
facility condition without deciding the issue.
20 AS 09.19.200(c).
21 Hertz does not appear to challenge the underlying
constitutionality of APLRA. Although his reply brief recites
the Contracts Clauses of both the Alaska and United States
Constitutions as in support of his argument, he does not argue
the point. Furthermore, in his opening brief, Hertz concedes
that APLRA does not violate the Contract Clause of the United
States or Alaska Constitutions. Were Hertz to argue that the
APLRA is unconstitutional, the doctrine of res judicata would
probably bar that argument. Hertz was a member of the Cleary
class when it challenged the APLRAs constitutionality in
superior court. Cleary et al. v. Smith et al., No. 3AN-81-5274
Ci. (Alaska Super. July 3, 2001). The superior court addressed
the Contracts Clauses of both the Alaska and Federal
Constitutions. It upheld the statutes limits on prospective
relief as constitutional, and the Cleary class did not appeal
that decision. Therefore we do not consider the
constitutionality of APLRA here. But the Cleary class did not
litigate whether APLRA applies to claims for gate money. Thus,
the Cleary class did not raise the claims Hertz raises here, and
res judicata does not bar those claims. See Ferguson v. State,
816 P.2d 134 (Alaska 1991) (holding inmates challenge to drug
testing procedures not barred by res judicata based on previous
Cleary litigation).
22 See Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 578 (1972); Breeden v. City of Nome, 628 P.2d 924, 926
(Alaska 1981) (discussing statute governing terms of employment
with city as well as employees contract with city in order to
determine whether employee had protected property interest in
employment).
23 AS 09.19.200(g)(5).
24 We note that his claim for prospective relief raises
different issues than would a claim for breach of contract by a
released prisoner who had been denied gate money. That question
is not presented here, and we do not address it.
25 AS 09.19.200(c).
26 AS 09.19.200(g)(7).
27 408 U.S. 564, 577 (1972).
28 Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska
1981) (quoting Roth, 408 U.S. at 577).
29 Bishop v. Wood, 426 U.S. 341, 344 (1976) (A property
interest . . . can, of course, be created by ordinance, or by .
. . contract.); Breeden, 628 P.2d at 926.
30 See Baker v. State, 158 P.3d 836, 838 (Alaska App.
2007); see also 22 AAC 05.590 (Upon release of a prisoner, the
department will not provide a discharge payment or gate money
to the prisoner.).
31 See Webster v. Chevalier, 834 F. Supp. 628 (W.D.N.Y.
1993) (holding that New York did not violate inmates due
process rights by changing release policy from a gift of gate
money from state funds to taking gate money out of inmates
wages); Ward v. Stewart, 511 F. Supp. 2d 981, 985 (D. Ariz.
2007) (Arizona did not commit an unconstitutional taking by
withholding gate money from wages of inmate who faced life
imprisonment and would therefore never see gate money because
even if gate money is considered private property, prisoners
forfeited all right to possess, control, or dispose of private
property.).
32 Bishop, 426 U.S. at 344.
33 Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001)
(citing Hertz v. State, Dept of Corr., 869 P.2d 154 (Alaska
1994) and Logghe v. Jasmer, 686 P.2d 694 (Alaska 1984)). Cf.
Rathke v. Corr. Corp. of Am., 153 P.3d 303, 311 (Alaska 2007)
(relying on Smith, 24 P.3d at 1247 n.3, but stating in dicta
that the FSA is an enforceable contract between Alaska inmates
and the state).
34 Id. at 1249 (quoting Municipality of Anchorage v.
Gentile, 922 P.2d 248, 255-56 (Alaska 1996)).
35 See McGee v. McGee, 974 P.2d 983, 989-991 (Alaska
1999) (finding no error where trial court granted relief under
Civil Rule 60(b)(6) from marital property division judgment
after creation of Individual Fishing Quota program which
created valuable marital property not divided in original
judgment); Weiss v. State, 939 P.2d 380, 397 (Alaska 1997)
(discussing consent decree in class action against state by
developmentally disabled plaintiffs, we noted that [a] material
change of the settlement agreement by the legislature would . .
. present one of the narrowly defined situations that clearly
present other reason[s] for justifying relief under Rule
60(b)(6) allowing a court to relieve plaintiffs of their own
obligations under the agreement).
36 18 U.S.C. 3626(b) (2006).
37 See, e.g., Benjamin v. Jacobson, 172 F.3d 144, 164
(2nd Cir. 1999) (finding no protected property right in
prospective enforcement of consent decree, and therefore that
PLRA does not violate due process by depriving inmates of it);
see also Inmates of Suffolk County Jail v. Rouse, 129 F.3d
649, 658 (1st Cir. 1997); and Pyler v. Moore, 100 F.3d 365, 370
(4th Cir. 1996) ([W]e conclude that the term Federal right as
used in [PLRA] does not include rights conferred by consent
decrees providing relief greater than that required by federal
law.).
38 Benjamin, 172 F.3d at 164.
39 See supra n.19.
40 AS 09.19.200(e).
41 AS 09.19.200(e) (emphasis added).
42 835 P.2d 438, 442 n.3 (Alaska 1992).
43 177 P.3d 258, 268 (Alaska 2008).
44 Id.
45 Id.
46 Id.
47 See Alaska R. Admin. P. 12(a) (The court shall appoint
counsel. . . . only when the court specifically determines that
the appointment is clearly authorized by law or rule).
48 See Alaska R. of Admin. P. 12(b)-(c) (giving
appointments procedures under those statutes providing for
appointment of counsel AS 18.85.100 and AS 44.12.410).
49 See Alaska R. of Admin. P. 12(e) (setting out
appointments procedures in situations where constitution or
statutes require appointment of counsel for biological parents
in adoption cases governed by the Indian Child Welfare Act, for
minor children and indigent parents/custodians in minor
guardianship cases, for respondents in protective proceedings
governed by AS 13.26, for minor children or incompetents who are
heirs or devisees of estates which cannot pay their attorneys
fees, for indigent putative fathers when the state of Alaska
provides representation for mothers, for indigent respondents in
involuntary alcohol commitments governed by AS 47.37, and for
indigent parents defending a claim that their consent to
adoption is not required).
50 Bustamante v. Alaska Workers Comp. Bd., 59 P.3d 270,
274 (Alaska 2002) ([Plaintiffs] claim does not fall into one of
the already recognized exceptions [to the rule that an indigent
person has no right to appointed counsel in most civil cases].
We must therefore determine whether [Plaintiffs] due process
rights were violated. . . .).
51 Id.
52 Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d
1105, 1112 (Alaska 2002).
53 See Bustamante, 59 P.3d at 274.
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