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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Farmer v. State, Dept. of Law, Office of Attorney General (6/25/2010) sp-6483
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
| PAUL N. FARMER, | ) |
| ) Supreme Court No. S- 13203 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-10878 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF LAW, | ) No. 6483 June 25, 2010 |
| OFFICE OF THE ATTORNEY | ) |
| GENERAL, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason,
Judge.
Appearances: Paul N. Farmer, pro se,
Anchorage. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions & Appeals, Anchorage, and
Richard A. Svobodny, Acting Attorney General,
Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
In the early 1990s, Paul Farmer was convicted of
several felonies. More than ten years after completing his
sentence of incarceration, followed by a term of probation,
Farmer attempted to purchase a rifle. The FBI refused to
authorize his purchase, presumably due to his felony convictions.
Farmer then petitioned for expungement of his criminal record so
that he would be able to legally purchase and possess a firearm.
While acknowledging that it is an open question whether Alaska
courts have inherent authority to expunge criminal records, the
superior court concluded that even if such authority exists,
Farmer would not qualify for expungement. The superior court
denied Farmers petition, and Farmer appealed. Because we agree
that Farmer would not qualify for expungement even if Alaska
courts have inherent authority to expunge criminal records, we
affirm the superior courts ruling.
II. STATEMENT OF FACTS
A. Facts
In 1991 Paul Farmer pleaded no contest to the crime of
misconduct involving a controlled substance in the fourth degree,
a felony.1 Superior Court Judge Beverly W. Cutler suspended the
imposition of sentence on the condition that Farmer serve two
years of probation.2 In 1993 Farmer was convicted of two counts
of misconduct involving a controlled substance in the fourth
degree and one count of misconduct involving weapons in the first
degree, also a felony. The superior court sentenced Farmer to
two years for the controlled substance convictions and two years
with all but sixty days suspended for the weapons conviction.
The superior court also imposed sentence on the 1991 controlled
substance conviction, sentencing Farmer to one year with ten
months suspended.
More than ten years after completing his sentence and
subsequent period of probation, Farmer tried to buy a rifle. The
FBI sent Farmer a letter refusing to authorize the purchase,
presumably due to his felony convictions. Farmer evidently
appealed, and the FBI sent Farmer a letter denying his appeal.
B. Proceedings
On October 19, 2007, about four and a half months after
receiving the FBIs letter denying his appeal, Farmer filed a
petition in superior court seeking to expunge his criminal record
and arguing that he has led an honest and upright life since
completing his probation. He also asserted that he requires a
firearm for self defense in the home, hunting, or for subsistence
off the land and that, under these circumstances, permanently
banning him from purchasing and possessing a firearm violates his
constitutional right to bear arms. The State filed an opposition
to Farmers petition, arguing that federal law prohibits Farmer
from possessing any firearm or ammunition for the rest of his
life, and that the prohibition would not be lifted even if court
records later are sealed or expunged.
Farmer filed a reply memorandum, accompanied by a
second motion and memorandum, asking the court to rule on the
merits of his petition. In its response, the State characterized
Farmers petition as concerning his right to buy firearms and
argued that the right to buy firearms is not constitutionally
protected. The State also argued that Farmer was not entitled to
expungement of his record.
On July 3, 2008, the superior court issued an order
denying Farmers petition for the expungement of his criminal
convictions. As the order explained, No Alaska statute, rule or
judicial decision expressly vests Mr. Farmer with the right to
obtain the expungement of his criminal records. The court noted
that under AS 12.55.085, it is permitted to set aside a
conviction under certain circumstances. While acknowledging that
it is an open question whether a trial court has the inherent
authority to expunge Mr. Farmers felony convictions, the superior
court concluded that doing so under the circumstances of this
case would clearly be an abuse of discretion.
Farmer then filed a motion to have his prior
convictions set aside, which the State opposed. The superior
court denied Farmers motion, explaining that convictions may be
set aside only where a felon has been discharged without
imposition of sentence and that because Farmer received sentences
of record, his convictions could not be set aside.
Farmer appeals the denial of his petition for
expungement. He also argues that the superior court erroneously
prevented him from filing a motion for reconsideration of its
final judgment.
III. STANDARD OF REVIEW
This case involves issues of statutory and
constitutional interpretation to which we apply our independent
judgment, adopting the rule of law that is most persuasive in
light of precedent, reason, and policy.3 We review a trial
courts decision whether to provide guidance to a pro se litigant
for abuse of discretion.4
IV. DISCUSSION
Farmer argues that he should qualify for judicial
expungement of his criminal record because denying him
expungement violates his right to bear arms, his right to
privacy, and his right to due process and because his convictions
resulted from admission of evidence obtained through an illegal
search.
In Journey v. State, we declined to decide whether
Alaska courts have inherent authority to expunge a defendants
criminal record because the parties did not provide adequate
briefing on how state courts had resolved the question.5 But
even if Alaska courts do have inherent authority to expunge a
defendants criminal record, this case does not present
circumstances that would justify expungement.
A. Even If Alaska Courts Have Inherent Authority To
Expunge Criminal Convictions, Farmer Would Not Qualify
For Expungement.
Court decisions finding inherent judicial authority to
expunge criminal records suggest that the power to expunge
inheres either in the courts expressly conferred authority to
preside over trials and sentencings in criminal cases or in its
traditional role as enforcer of constitutional guarantees.6
Federal courts have uniformly claimed inherent power to expunge
criminal records.7 But they have reserved this authority only
for the unusual or extreme case.8 State courts holding that
they, like federal courts, have inherent authority to expunge
criminal records have adopted a variety of standards for when a
petitioner may qualify for expungement. Some have adopted
balancing tests weighing the petitioners rights against the
publics interest in retaining criminal records.9 At least one
state court applies a balancing test even when the petitioners
constitutional rights are not implicated.10 Others, including the
Alaska Court of Appeals, indicate that an exceptional or
extraordinary circumstances standard would be appropriate.11
1. If Alaska courts have inherent authority to
expunge criminal convictions, they may properly
exercise that authority only in exceptional or
extraordinary circumstances.
In the federal court system, inherent authority to
expunge criminal records is limited, and expungement is
appropriate only where the extraordinary circumstances of a
particular case outweigh the governments interest in maintaining
criminal records.12 For example, federal courts may order
expunction in cases where there has been an unlawful arrest,
where an arrest has been made merely for harassment purposes, or
where the statute under which an individual was prosecuted has
subsequently been determined to be unconstitutional.13
Expungement of an arrest record is not necessarily appropriate
when a criminal defendant has been acquitted.14
While we do not adopt any specific standard for
determining whether expungement is appropriate, we agree that
even if Alaska courts have inherent authority to expunge,
judicial expungement of criminal records should be an exceptional
or extraordinary remedy rather than a generally available one.
2. Farmers case does not present extraordinary
circumstances that would justify judicial
expungement of his criminal record.
We first address Farmers argument that he is entitled
to expungement of his criminal record because the search that
produced evidence leading to his first conviction was illegal.
As the State points out, the court of appeals considered this
argument in 1992 and affirmed the denial of Farmers suppression
motion and his conviction.15 Farmer has thus never established
the illegitimacy of the search that resulted in his first
conviction. And he has neither identified new facts nor raised
new legal arguments that might challenge the validity of his
convictions. Finally, Farmer has never established his factual
innocence of the charges of which he was convicted. We therefore
assume, for the purposes of this case, the lawfulness and
validity of Farmers convictions and the accuracy of the States
record of his criminal history. Farmers allegations of an
illegal search therefore cannot justify expungement of his
criminal record.
We now turn to Farmers main argument that denying him
expungement violates his constitutional rights. As the court of
appeals explained in its review of the expungement issue, [U]nder
certain circumstances, an order expunging criminal records might
be appropriate to prevent or remedy a violation of
[constitutional] rights, even though the disputed records were
properly obtained and retained in the first instance.16
Farmer primarily argues that because his criminal
record prevents him from purchasing and possessing a firearm,
denying him expungement violates the right to bear arms under the
Second Amendment to the United States Constitution and article I,
section 19 of the Alaska Constitution. Citing District of
Columbia v. Heller, a decision by the Supreme Court of the United
States holding that the Second Amendment confers an individual
right to bear arms,17 Farmer argues that prohibiting all convicted
felons from purchasing and possessing firearms unjustly denies
convicted felons their constitutional right.
As the Supreme Court explained, however, the Second
Amendment is not unlimited, and its ruling in Heller should [not]
be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons.18 As the State points out in
its briefing, this means that prohibitions on the possession of
firearms by convicted felons survive Heller. Like the Second
Amendment, the individual right to bear arms set out in article
I, section 19 of the Alaska Constitution is limited and does not
invalidate laws that restrict convicted felons access to
firearms.19
Because prohibitions on the purchase and possession of
firearms by convicted felons do not violate either the Second
Amendment of the United States Constitution or article I, section
19 of the Alaska Constitution, Farmers argument is unavailing.
The adverse consequences of conviction that Farmer argues violate
his constitutional rights are, in fact, the natural and intended
collateral consequences of having been convicted.20 For this
reason, they do not justify judicial expungement of his criminal
record.21
B. The Superior Court Did Not Prevent Farmer From Filing A
Motion For Reconsideration.
The last line of the superior courts final order
denying Farmers petition reads: Accordingly, Mr. Farmers
petition is DENIED and this action is DISMISSED with prejudice.
Farmer argues that this wording deprived him of his right to file
a motion for reconsideration. As he explains in his briefing,
The manner in which [the superior courts] order was worded would
have barred any attorney from filing a Motion for
Reconsideration. After all, [the superior court] dismissed [the]
action WITH prejudice. This argument is unconvincing.
As we have recognized, the phrase with prejudice,
expressed in a judgment of dismissal, has a well-recognized legal
import; and it indicates an adjudication of the merits, operating
as res judicata.22 It does not prevent parties to the case from
filing motions for reconsideration. In fact, Alaska Rule of
Civil Procedure 77(k) provides that a party may file a motion for
reconsideration within ten days of the date of notice of the
final judgment in the case. As the State correctly explains in
its briefing, the superior courts order was the final judgment
from which Farmer could have filed a motion for reconsideration.
We have held that courts should generally relax the
pleading requirements for pro se litigants, particularly where
lack of familiarity with the rules rather than gross neglect or
lack of good faith underlies litigants errors, and that courts
should provide pro se litigants with guidance as to the proper
procedure for the actions they are obviously trying to
accomplish.23 We have also indicated, however, that pro se
litigants are expected to make a good faith attempt to comply
with the rules of procedure absent this effort, [the litigant]
may be denied the leniency otherwise afforded pro se litigants.24
Although the superior court was likely aware that Farmer was
unhappy with its ruling, it had no reason to know that Farmer
wanted to file a motion for reconsideration as opposed to an
appeal. Moreover, Civil Rule 77(k) clearly sets out the
requirements for filing a motion for reconsideration, and Farmer
failed to file even a defective motion.25 Finally, because
Farmers case involves issues of statutory and constitutional
interpretation, the superior courts ruling is being reviewed de
novo.26 Even if it was error not to inform Farmer that he could
file a motion for reconsideration, our de novo review of the
merits of his case cures any possible prejudice.27
V. CONCLUSION
For these reasons, we AFFIRM the judgment of the
superior court.
_______________________________
1 Farmer v. State, Mem. Op. & J. No. 2582, 1992 WL
12153691, at *1 (Alaska App., Dec. 30, 1992).
2 Id.
3 Kohlhaas v. State, Office of the Lieutenant Governor,
147 P.3d 714, 717 (Alaska 2006).
4 Snyder v. Am. Legion Spenard Post, 119 P.3d 996, 1001
(Alaska 2005).
5 895 P.2d 955, 962 (Alaska 1995), affg, Journey v. State
(Journey I), 850 P.2d 663 (Alaska App. 1993) (Given the fact that
neither party provides adequate briefing on the question of how
state courts, as opposed to federal courts, have decided the
inherent authority to expunge issue, we conclude that this case
presents an inappropriate occasion upon which to decide the
issue.).
6 Journey I, 850 P.2d at 666; see also State v. C.A., 304
N.W.2d 353, 357-58 (Minn. 1981) (holding that the judiciarys
inherent authority includes both the power to fashion relief
necessary to prevent serious infringement of constitutional
rights and the power to reduce or eliminate unfairness to
individuals, even though the unfairness is not of such intensity
as to give a constitutional dimension).
7 Journey I, 850 P.2d at 666; see also United States v.
Friesen, 853 F.2d 816, 817-18 (10th Cir. 1988); Maurer v.
Individually and as Members of L.A. County Sheriffs Dept, 691
F.2d 434, 437 (9th Cir. 1982); United States v. McMains, 540 F.2d
387, 389-90 (8th Cir. 1976); Menard v. Saxbe, 498 F.2d 1017, 1023
(D.C. Cir. 1974); United States v. McLeod, 385 F.2d 734, 748-50
(5th Cir. 1967).
8 United States v. Linn, 513 F.2d 925, 927 (10th Cir.
1975).
9 See, e.g., Davidson v. Dill, 503 P.2d 157 (Colo. 1972)
(weighing the individuals right to privacy against the states
interest in maintaining records); Commonwealth v. Wexler, 431
A.2d 877 (Pa. 1981) (weighing individuals right to be free from
the harm attendant to maintenance of the arrest record against
the states interest in maintaining records).
10 See State v. K.M.M., 721 N.W.2d 330, 334-35 (Minn. App.
2006) (This inherent authority is exercisable (1) when
petitioners constitutional rights may be seriously infringed by
retention of the records; or (2) when constitutional rights are
not involved, but the court determines that expungement will
yield a benefit to the petitioner commensurate with the
disadvantages to the public from the elimination of the record
and the burden on the court in issuing, enforcing, and monitoring
an expungement order. ) (quoting State v. Ambaye, 616 N.W.2d 256,
258 (Minn. 2000)).
11 See, e.g., Journey I, 850 P.2d at 666 (holding that
even if inherent judicial authority to expunge criminal records
exists, petitioners did not present[] the type of exceptional
circumstances that could conceivably warrant a discretionary
exercise of that authority); Toth v. Albuquerque Police Dept, 944
P.2d 285, 287 (N.M. App. 1997) (holding that if inherent judicial
authority to expunge criminal records exists at all, it must be
exercised sparingly and only in extraordinary circumstances).
12 United States v. Smith, 940 F.2d 395, 396 (9th Cir.
1991).
13 United States v. G., 774 F.2d 1392, 1394 (9th Cir.
1985); see also Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974)
(where arrest was shown never to have been made); Sullivan v.
Murphy, 478 F.2d 938 (D.C. Cir. 1973) (where arrests were
unconstitutional); United States v. McLeod, 385 F.2d 734 (5th
Cir. 1967) (where arrests and prosecutions were meant to
interfere with individuals right to vote).
14 See, e.g., United States v. Linn, 513 F.2d 925, 927-28
(10th Cir. 1975) ([I]t would appear that an acquittal, standing
alone, is not in itself sufficient to warrant an expunction of an
arrest record.).
15 See Farmer v. State, Mem. Op. & J. No. 2582, 1992 WL
12153691, at *1 (Alaska App., Dec. 30, 1992).
16 Journey I, 850 P.2d 663, 668 (Alaska App. 1993).
17 128 S. Ct. 2783 (2008).
18 Id. at 2816-17.
19 See Gibson v. State, 930 P.2d 1300, 1301-02 (Alaska
App. 1997) (holding that the 1994 amendment to article I, section
19 was not intended to prevent the legislature from regulating
the possession and use of firearms). But see Wilson v. State,
207 P.3d 565, 571 (Alaska App. 2009) (Mannheimer, J., dissenting)
(explaining that the drafters and supporters of the 1994
amendment intended to impose a strict scrutiny/compelling state
interest test for firearms laws and repeatedly rejected efforts
to change the wording of the amendment in ways that would have
guaranteed the legislatures authority to enact reasonable
firearms laws, or that would have guaranteed the
constitutionality of Alaskas then-existing firearms laws.).
20 United States v. Smith, 940 F.2d 395, 396 (9th Cir.
1991).
21 We note that under Alaska law, Farmer may be permitted
to purchase and possess a firearm because his convictions did not
result from any violation of AS 11.41 and because ten years have
elapsed since Farmer was discharged from his convictions. See AS
11.61.200(a)(1), (b)(1)(C). Title 11, chapter 41 of the Alaska
Statutes is titled Offenses Against the Person and includes
homicide, assault, kidnapping, sexual offenses, and robbery. AS
11.41.100.530. As both parties acknowledge, Farmer was convicted
of three counts of misconduct involving a controlled substance in
the fourth degree, violations of Chapter 71, and one count of
misconduct involving weapons in the first degree, a violation of
Chapter 61. The State argues that because Alaska law still
restricts Farmers ability to carry concealed firearms, Farmer is
prohibited from purchasing and possessing a firearm under federal
law. See AS 11.61.200(a)(12), (g) (prohibiting convicted felons
from carrying concealed firearms unless the convictions did not
result from any violation of AS 11.41, ten years have elapsed
since being discharged from those convictions, and they are in
their own homes or are engaged in a lawful outdoor activity, such
as hunting, that requires carrying firearms); Caron v. United
States, 524 U.S. 308 (1998) (holding that state prohibition on
handgun possession by convicted felons triggered federal
prohibition on firearm possession by convicted felons). But see
United States v. Flores, 118 F. Appx 49, 52-53 (6th Cir. 2004)
(holding that state prohibition on a convicted felons right to
obtain a license or permit to carry concealed firearms did not
trigger federal prohibition on firearm possession by convicted
felons). Whether Farmer is prohibited from purchasing and
possessing a firearm under federal law and whether the FBI was
therefore correct in refusing to authorize Farmers firearm
purchase are not questions properly before us here.
22 Smith v. CSK Auto, Inc., 132 P.3d 818, 820 (Alaska
2006) (quoting 46 Am. Jur. 2d Judgments 609 (2005)).
23 Gilbert v. Nina Plaza Condo Assn, 64 P.3d 126, 129
(Alaska 2003).
24 Id.
25 See Bauman v. State, Div. of Family & Youth Servs., 768
P.2d 1097, 1099 (Alaska 1989) (declining to require judges to
warn pro se litigants on aspects of procedure when the pro se
litigant has failed to at least file a defective pleading).
26 Kohlhaas v. State, Office of the Lieutenant Governor,
147 P.3d 714, 717 (Alaska 2006).
27 Mullins v. Local Boundary Commn, 226 P.3d 1012, 1016
(Alaska 2010).
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