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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. Carothers (2/12/2010) sp-6457
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- 13245 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-04- 425 CI | |
| v. | ) |
| ) O P I N I O N | |
| DAN CAROTHERS, | ) |
| ) No. 6457 - February 12, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Sidney R. Hertz, pro se,
Seward. Marilyn J. Kamm, Assistant Attorney
General, Richard A. Svobodny, Acting Attorney
General, Juneau, for Appellee.
Before: Eastaugh, Winfree and Christen,
Justices. [Carpeneti, Chief Justice and Fabe,
Justice, not participating.]
CHRISTEN, Justice.
I. INTRODUCTION
This is the second time we have addressed Sidney Hertzs
objections to the States attempt to execute a judgment against
his prisoner trust account. In Hertz v. Carothers1 (Hertz I),
Hertz challenged the States right to execute on his prisoner
trust account to satisfy a judgment for Alaska Civil Rule 82
attorneys fees entered after Hertz lost a prisoner civil rights
lawsuit against the State. There, we affirmed the validity of AS
09.38.030(f) which excludes prisoners from an exemption for low
wage earners. Following Hertz I, the State again levied on
Hertzs trust account to satisfy the remainder of its judgment.
Hertz now challenges the levy on the grounds that (1) he was not
served properly; (2) ambiguities between AS 09.38.030(f) and AS
33.30.201(d) should be resolved in his favor; (3) AS
09.38.030(f)(5) is an ex post facto law; and (4) AS
09.38.030(f)(5) violates the contract clauses of the Alaska and
United States Constitutions. We reverse the courts ruling that
Hertz was properly served but affirm the courts rulings that
Hertzs prisoner trust account is subject to execution and that
the States attorney should not be sanctioned. We also hold that
AS 09.38.030(f) is not an ex post facto law and that it does not
violate the contract clause of the Alaska Constitution or the
contract clause of the United States Constitution.
II. FACTS AND PROCEEDINGS
Hertz is an inmate at Spring Creek Correctional Center
(SCCC). In July 2004 he sued the Alaska Department of
Corrections and several of its employees for alleged civil rights
violations.2 The superior court dismissed Hertzs civil rights
suit and awarded Rule 82 attorneys fees of $3,225 to the State.3
The fee award was later reduced to a judgment.4 When the State
attempted to execute against Hertzs prisoner trust account to
satisfy the judgment, Hertz claimed exemptions under AS
09.38.030(a) and (b).5 Specifically, he argued that his wages
were exempt from execution because they fell below the statutory
minimum in AS 09.38.030.6 Alternatively, he argued that the
statute was invalid under several different theories.7 In our
January 2008 decision, Hertz I, we affirmed the superior courts
order rejecting Hertzs claims of exemption.8 We also affirmed
the validity of AS 09.38.030(f).9
On March 14, 2008, the State again sought to execute
against Hertzs prisoner account to satisfy the remaining portion
of its judgment. The States service instructions directed the
Alaska State Troopers (Judicial Services) to serve the writ of
execution and creditors affidavit on Superintendent Turnbull at
SCCC. The service instruction form contained a separate section
entitled Instructions for Serving Notices on the Debtor, which
directed that a copy of the States creditors affidavit, notice of
levy and sale of property, notice of right to exemptions, claim
of exemptions form, and judgment debtor booklet be served on
Hertz. On June 12, 2008, a trooper served the writ of execution
on Superintendent Turnbull. The trooper did not serve any
documents on Hertz.
It is undisputed that Hertz had actual knowledge of the
States attempt to execute against his prisoner trust account by
June 17, 2008, when he sent a letter to the superior court
challenging the States theft of his money based in part on lack
of notice. When the States counsel realized that Hertz had not
been served, she faxed the documents that should have been served
on Hertz to SCCC. A prison guard personally delivered them to
Hertz on June 19, 2008.
Hertz responded to the faxed documents by filing
several claims of exemption in which he argued that (1) improper
service voids the levy; (2) ambiguities between AS 33.30.201(d)
which provides that the primary purpose of the prisoner trust
account is to make funds available for prisoners use at the time
of release and AS 09.38.030(f)(5) which allows the execution of
judgments against prisoner accounts must be construed against
the government; and (3) $185 in his trust account was not subject
to execution because he had received it in the form of gifts from
family and friends and the money should have been retained by the
commissioner pursuant to AS 33.30.201(d).
On August 5, 2008, the superior court denied Hertzs
claims of exemption, citing Hertz I. The superior court reasoned
that our court has ruled that a prisoners trust account may be
subject to execution, and noted that there is no exception in the
statutory scheme for money acquired by gift. Finally, the court
rejected Hertzs argument that the errors in the States service
should negate the writ because there is no prejudice by [the]
delayed service and no showing of a knowing violation of the
statute. The superior court rejected Hertzs motion for
reconsideration.
Hertz appeals.
III. STANDARDS OF REVIEW
We review issues of statutory interpretation, as well
as questions about the constitutionality of statutes, de novo.10
Decisions whether to sanction attorneys are reviewed for abuse of
discretion.11 A judges refusal to recuse him- or herself is
reviewed under the abuse of discretion standard.12
IV. DISCUSSION
A. The Execution on Hertzs Prisoner Trust Account Was
Invalid Because the State Failed To Properly Serve Him.
The State argues that it was in technical compliance
with AS 09.38.085(a)(1) because it served Hertz with a notice of
levy, a claim of exemptions form, a creditors affidavit, and a
judgment debtors handbook. But the State misses the crux of
Hertzs argument. Hertzs challenge is not to the sufficiency of
the documents served; he challenges the States method of service.
Several statutes and rules describe the notice the
State was required to provide Hertz before levying on his trust
account. Alaska Statute 09.38.080(c) requires that [b]efore, at
the time of, or within three days after the levy, the creditor
shall serve on the individual [debtor] a notice under AS
09.38.085. Alaska Statute 09.38.085 describes the content of the
required notices, and AS 09.38.500, the definitions section of
the Alaska Exemptions Act, specifies the method for serving the
notices. The term serve notice in AS 09.38.080(c) means to give
the person to be served a written personal notice in the same
manner a summons in a civil action is served, or to mail the
notice to the persons last known address by first-class mail and
by using a form of mail requiring a signed receipt.13 Hertz was
served personally, not by mail, so we turn to the civil rules.
Civil Rule 4 identifies the permissible methods for
serving a summons in a civil action. It requires service to be
made by a peace officer, by a person specially appointed by the
Commissioner of Public Safety for that purpose or, where a rule
so provides, by registered or certified mail. The rule defines
peace officer as any officer of the state police, members of the
police of any incorporated city, village or borough, United
States Marshals and their deputies, other officers whose duty it
is to enforce and preserve the public peace, and . . . persons
specially appointed. Special appointments shall only be made by
the Commissioner of Public Safety after a thorough investigation
of each applicant.14
After the States counsel learned that the trooper had
failed to serve Hertz as instructed, she faxed the documents to
SCCC. A prison guard delivered them to Hertz on June 19, 2008.
But the State did not argue, and the record does not show, that
the prison guard who served Hertz was a peace officer or a person
specially appointed to serve process within the meaning of Civil
Rule 4. We agree with the superior court that the delay in
service was not prejudicial to Hertz, but the State was still
required to use an authorized method of service. The record does
not show that the State complied with Civil Rule 4.15
We are mindful that our ruling regarding service may
appear to elevate form over substance because Hertz had actual
knowledge of the levy by June 16, 2008. But we are loathe to
carve out exceptions to the important rules for service of
process. These rules enable courts to verify that service has
actually been made; they are vital to ensuring that litigants
receive the due process to which they are entitled, and they are
broadly applicable. Creating an exception merely to avoid
requiring the State to properly serve Hertz is fraught with
precedential danger. Such an exception, though seemingly narrow,
could be applied in future cases to relax the notice requirements
for litigants who might not have received the actual notice Hertz
enjoyed. This danger would be especially acute in cases
involving requests for entry of default judgment. Given the
serious consequences of execution, i.e., the involuntary
confiscation of a debtors property, we must insist on strict
compliance with the legislatures statutory scheme and the service
requirements of Civil Rule 4.16
B. Alaska Statutes 33.30.201(d) and 09.38.030(f)(5) Do Not
Conflict and Are Not Ambiguous.
Alaska Statute 33.30.201(d) provides for prisoners to
be compensated for their work in prison and for their wages to be
placed in a trust account for the primary purpose of being
available to them at the time of release. But AS 09.38.030(f)
provides that [a]ll money in an incarcerated persons account at a
correctional facility is available for disbursement under a
notice of levy under this subsection . . . (5) to satisfy other
judgments entered against a prisoner in litigation against the
state. Hertz argues that the primary purpose language of AS
33.30.201(d) conflicts with the disbursement scheme in AS
09.38.030(f). Citing this ambiguity Hertz argues that
[a]mbiguities in criminal statutes must be narrowly read and
construe[d] strictly against the government.
In Hertz I, we upheld the states ability to execute on
prisoner accounts despite an exemption for low-wage earners and
those who are paid semi-monthly.17 We noted that AS
09.38.030(f)(5) specifically eliminates the low-wages exemption
when low wages are paid to prisoners.18
Hertzs present challenge to AS 09.38.030(f)(5) is
technically barred by the doctrine of res judicata;19 he was
required to raise all of his challenges to the statute in Hertz
I.20 But Hertzs argument is unavailing even on the merits.
Alaska Statute 33.30.201 states that prisoner wages shall be
disbursed pursuant to a specified order of priority and that
remaining funds are to be given to the prisoner when he or she is
released, subject to exceptions. After all disbursements are
paid in the statutorily required order of priority, subsection
.201(f) states that remaining funds are subject to lien,
attachment, garnishment, execution, or similar procedures to
encumber money or property. This provision does not conflict
with AS 09.38.030(f)(5). Alaska Statutes 33.30.201(c) and (f)
identify the priorities for which a prisoners trust account can
be invaded, and AS 09.38.030(f) explains that prisoners do not
enjoy the benefit of the exemption for earnings and liquid assets
enunciated in AS 09.38.030 generally. Both statutes contemplate
and accommodate the execution and garnishment of prisoner trust
accounts.
To the extent that Hertz argues that these statutes
must be construed against the State because they are criminal
statutes, he is mistaken. The fact that these statutes govern
the administration of prisoner trust accounts does not make them
criminal statutes. Hertz has cited no authority and we have
found none supporting his assertion that statutes should be
strictly construed against the State merely because they apply to
convicted felons. Alaska Statutes 09.38.030 and 33.30.201 are
civil statutes, they are not ambiguous, and they do not conflict.
After all disbursements are made from a prisoners trust account
pursuant to the statutes order of priority, all remaining funds
are subject to execution.
C. Alaska Statute 09.38.030(f)(5) Is Not an Ex Post Facto
Law.
Hertz asserts that AS 09.38.030(f)(5) is an ex post
facto law. The basis for this argument is that this statute was
passed in 1995, after the State entered into a consent decree to
resolve litigation challenging the conditions of confinement for
Alaska prisoners.21 Hertz argues that the adoption of AS
09.38.030(f)(5) in the wake of the Cleary consent decree creates
the appearance that AS 09.38.030(f)(5) was enacted solely for the
purpose of circumventing the Cleary [Final Settlement Agreement
and Order].
We have adopted the United States Supreme Courts view
that:
any statute which punishes as a crime an act
previously committed, which was innocent when
done; which makes more burdensome the
punishment for a crime, after its commission;
or which deprives one charged with a crime of
any defense available according to law at the
time when the act was committed, is
prohibited as ex post facto.[22]
Alaska Statute 09.38.030(f)(5) does not criminalize behavior that
was previously not criminal and it has no bearing on the defense
of any crime; it is not an ex post facto law.
D. Alaska Statute 09.38.030(f)(5) Does Not Violate the
Contract Clause.
Hertz argues that AS 09.38.030(f)(5) violates the
contract clause of the United States Constitution and the
contract clause of the Alaska Constitution by substantial[ly]
impair[ing] his contractual right to allege noncompliance with
the Cleary consent decree. He supports this argument by pointing
out that this Court has admitted that A.S. 09.38.030(f)(5) was to
discourage prisoner litigation. Our court has explained:
Article I, section 15 of the Alaska
Constitution provides: No law impairing the
obligation of contracts . . . shall be
passed. Because the language of the contract
clause of the Alaska Constitution is nearly
identical to that of the federal Contract
Clause, we apply the same two-part analysis
to alleged violations of the Alaska and
federal contract clauses. We first ask
whether the change in state law has operated
as a substantial impairment of a contractual
relationship. If there is a substantial
impairment, we then examine whether the
impairment is reasonable and necessary to
serve an important public purpose.
. . . .
Under the first prong of the contract clause
test, we consider: (1) whether there is a
contractual relationship, (2) whether the law
impairs the contractual relationship, and (3)
whether the impairment is substantial.[23]
The Cleary consent decree sets minimum standards for
conditions of prisoner confinement including food, medical care,
and dental care. It also provides procedures for prisoners to
file grievances for non-compliance with the decree.24 After
exhausting the administrative grievance procedure, an inmate may
file suit in superior court. In this case, the State does not
challenge Hertzs assertion that the Cleary consent decree
established a contractual relationship between the State and
inmates in the custody of the State of Alaska,25 arguing instead
that even if such a contractual relationship exists, AS
09.38.030(f) does not impair it. We agree; AS 09.38.030(f) does
not impair prisoners ability to seek enforcement of the Cleary
consent decree. We do not need to decide whether the Cleary
consent decree constitutes a binding contract.
Civil Rule 82 provides for the award of attorneys fees
to the prevailing party of a civil lawsuit. Civil Rule 82 was in
effect when the Cleary consent decree was entered, November 1,
1990. The consent decree addresses certain conditions of
confinement; it does not immunize prisoners from attorneys fee
awards or exempt inmate trust accounts from execution to satisfy
fee awards. Alaska Statute 09.38.030(f)(5) allocates some of the
States cost of defending lawsuits to the non-prevailing prisoner,
thereby discouraging frivolous claims.26 An inmates right to be
free of state interference with his right of access to the court
system is not absolute.27 A statute is constitutional if it does
not impermissibly interfere with, or burden, an inmates right of
access to the court and is sufficiently related to a legitimate
government interest.28 Alaska Statute 09.38.030(f)(5) does not
prevent or stifle a prisoners ability to pursue legitimate claims
against the government.
The specter of Rule 82 fees tempers the litigiousness
of most civil litigants; we see no reason to make a special
exception for inmates. Alaska Statute 09.38.030(f)(5) merely
reflects the States interest in discouraging frivolous prisoner
litigation, a legitimate goal we have repeatedly upheld.29 We are
not convinced that permitting the State to collect judgments from
prisoner trust accounts impairs the right of prisoners to seek
enforcement of the Cleary consent decree,30 and we hold that AS
09.38.030(f)(5) does not violate the Alaska or federal
prohibition against impairment of contracts.
E. There Was No Misconduct by the States Attorney.
Hertz asserts that the superior court erred by failing
to sanction the States counsel under Professional Conduct Rule
95(b) for (1) failing to have him served by a peace officer; and
(2) for lying because she never intended to serve Hertz with the
Writ.
The superior court correctly decided that Hertzs claims
of attorney misconduct are meritless. There is no evidence that
the States counsel acted inappropriately during the course of her
efforts to collect the States judgment. At most, there is
evidence that a mistake was made at the time of service.
Ironically, Hertzs allegation of misconduct arises from counsels
rush to arrange for personal delivery of the documents that would
notify Hertz of his right to claim exemptions; the States
attorney likely faxed the documents to SCCC for immediate
delivery in order to comply with AS 09.38.080(c), which requires
the debtor to receive notice [b]efore, at the time of, or within
three days after the levy.
Even though the State failed to comply with Civil Rule
4, there is no evidence that the States counsel intended to
deprive Hertz of his right to notice. Hertz admits that he
received the relevant documents by fax just days after he learned
of the levy and apparently shortly after the States attorney
discovered the mistake. The superior court appropriately
declined to sanction the States attorney.
F. Hertz Waived His Argument that Judge Collins Should
Have Recused Herself Because of Apparent Bias Against
Prisoners.
Hertz argues that the superior court judge created an
appearance of impropriety by ruling on his claim of exemptions
before receiving his response to the States objections.31 We see
no evidence of any bias in the record. And Hertz waived the
issue in any event by failing to move for disqualification in the
superior court.32
IV. CONCLUSION
We REVERSE the courts ruling that Hertz was adequately
served, but hold that AS 33.30.201(d) and AS 09.38.030(f)(5) do
not conflict and are not ambiguous, that AS 09.38.030(f)(5) is
not an ex post facto law, and that AS 09.38.030(f)(5) does not
violate the contract clause of the Alaska Constitution or United
States Constitution. We AFFIRM the superior courts rulings that
Hertzs trust account is subject to execution and that the States
attorney should not be sanctioned.
_______________________________
1 174 P.3d 243 (Alaska 2008).
2 Id. at 245.
3 Id.
4 Id.
5 Id.
6 Id.
7 Hertz v. Carothers, 174 P.3d 243, 245 (Alaska 2008).
8 Id.
9 Id. at 244.
10 C.J. v. State, Dept of Corr., 151 P.3d 373, 377 (Alaska
2006) (citing State v. Alaska Civil Liberties Union, 978 P.2d
597, 603 (Alaska 1999); Boone v. Gipson, 920 P.2d 746, 748
(Alaska 1996)).
11 Hertz, 174 P.3d at 245 (citing In re Schmidt, 114 P.3d
816, 819 (Alaska 2005)).
12 Mustafoski v. State, 867 P.2d 824, 832 (Alaska App.
1994) (citing Blake v. Gilbert, 702 P.2d 631, 640 (Alaska 1985);
Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991)).
13 AS 09.38.500(14).
14 Alaska R. Civ. P. 4(c)(3).
15 The States reliance on the substantial compliance
provision in AS 09.38.085(c) is misplaced. That provision
excuses errors in the notices themselves, not errors in the
physical delivery of the forms.
16 See Beery v. Browning, 717 P.2d 365, 367 n.8 (Alaska
1986).
17 Hertz v. Carothers, 174 P.3d 243, 246 (Alaska 2008).
18 Id.
19 See Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163,
166 (Alaska 1997) (The doctrine of res judicata as adopted in
Alaska provides that a final judgment in a prior action bars a
subsequent action if the prior judgment was (1) a final judgment
on the merits, (2) from a court of competent jurisdiction, [and]
(3) in a dispute between the same parties . . . about the same
cause of action.).
20 Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981) ([A]
fundamental tenet of the res judicata doctrine is that it
precludes relitigation between the same parties not only of
claims that were raised in the initial proceeding, but also of
those relevant claims that could have been raised then.).
21 Cleary v. Smith, No. 3AN-81-5274 Ci., Final Settlement
Agreement and Order (Alaska Super., September 21, 1990).
22 State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991)
(quoting Dobbert v. Florida, 432 U.S. 282, 292 (1977)).
23 Hageland Aviation Serv., Inc. v. Harms, 210 P.3d 444,
451-52 (Alaska 2009) (internal footnotes and citations omitted).
24 Cleary v. Smith, No. 3AN-81-5274 Ci., Final Settlement
Agreement and Order (Alaska Super., September 21, 1990).
25 See Hertz v. State, Dept of Corr., ___ P.3d ___, Op.
No. 12842 at n.33 (Alaska, January 8, 2010) (noting dicta in
Rathke v. Corr. Corp. of Am., 153 P.3d 303, 311 (Alaska 2007)
that the FSA is an enforceable contract between Alaska inmates
and the state. )
26 Hertz v. Carothers, 174 P.3d 243, 247 (Alaska 2008).
27 Brandon v. Corr. Corp. of Am., 28 P.3d 269, 277 (Alaska
2001) (quoting Mathis v. Sauser, 942 P.2d 1117, 1121 (Alaska
1997)).
28 Id.
29 See Hertz, 174 P.3d at 248; Brandon, 28 P.3d at 277
(affirming the validity of a statute requiring prisoners to pay
a portion of filing fees based on ability to pay).
30 Cf. Hageland Aviation Serv., Inc. v. Harms, 210 P.3d
444, 453 (Chapter 19 substantially impaired the overtime
compensation provision of the parties employment agreement when
Chapter 19 totally eliminated the pilots claims for unpaid
overtime wages.).
31 Judge Collins corrected herself by granting Hertzs
motion for reconsideration and reviewing Hertzs response to the
States objections.
32 See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280
(Alaska 2001) (A party may not raise an issue for the first time
on appeal.). Our court uses independent judgment when
determining whether an issue has been waived below due to
inadequate briefing. Lauth v. State, 12 P.3d 181, 184 (Alaska
2000) (citing Wilkerson v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 993 P.2d 1018, 1021 (Alaska
1999)).
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