Opinion
Supreme Court No. S-11494.
June 14, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William H. Morse, Judge, Superior Court No. 3AN-03-13498 Civil.
Ben J. Latham, pro se, Anchorage, Appellant.
Michael Sean McLaughlin, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This case arises from a superior court decision revoking Ben Latham's probation and imposing a new term of probation extending for a year longer than the previous term. Latham claimed that this sentence was excessive, but the court of appeals dismissed because it lacked jurisdiction over excessive sentence appeals where no term of imprisonment was at issue. Latham then sought post-conviction relief, challenging 1995 legislation that changed the jurisdiction of the court of appeals over excessive sentence appeals. The superior court denied relief, the court of appeals affirmed, and this court declined to review. Latham then brought a civil action on behalf of himself and over 100,000 other criminal defendants, seeking injunctive relief, invalidation of the 1995 jurisdiction law, and over $100 billion in damages. The superior court's denial of class certification and dismissal of the lawsuit is the subject of this appeal.
On appeal, Latham asserts that the superior court erred by refusing to certify the class; by failing to hold that the 1995 legislation was unconstitutional on a variety of grounds; by declining to hold that a previous court of appeals ruling was "Ex Post Facto Prohibited"; and by failing to address several claims under federal law that do not appear to have been raised below. Latham's fifteen claims are an attempt to relitigate his unsuccessful post-conviction appeal, and as such, they are barred by the doctrine of res judicata. For this reason, we affirm the judgment of the superior court.
II. FACTS AND PROCEEDINGS
In 1986 Ben Latham was convicted of robbery in the first degree and criminal mischief in the second degree for robbing a grocery store and damaging the stolen car in which he attempted to flee the scene of the crime. Upon conviction, he pled no contest to a second charge of criminal mischief for an unrelated incident, but reserved the right to appeal the trial court's decision not to suppress an electronically recorded conversation in which he admitted to all three crimes. Latham was sentenced to seven years of imprisonment for the robbery, and to terms of one and a half years each for the criminal mischief convictions. The criminal mischief sentences, which were suspended, were concurrent with each other but consecutive to the robbery sentence. Thus, his total sentence was eight and a half years, with one and a half years suspended. Latham appealed both his conviction and his sentence, but the court of appeals affirmed.
Latham v. State, 790 P.2d 717, 719 (Alaska App. 1990).
Id. at 719-20.
Id. at 722.
Id.
Id.
Id.
In 1994, before his probation for the 1986 conviction ended, Latham was convicted of another charge of criminal mischief in the second degree. The state moved to revoke his probation. The superior court found that Latham had violated his probation, but rather than sentencing him to any of the suspended jail time, it extended his term of probation by an additional year. Latham claimed on appeal that the sentence was excessive, but his claim was dismissed for lack of jurisdiction. The court of appeals affirmed this decision, and denied Latham's motion for reconsideration, noting that it did not have sentencing appeal jurisdiction in cases where no prison sentence had been imposed. Latham did not petition for discretionary sentence review in this court.
Latham v. State, Mem. Op. J. No. 4769 (Alaska App., October 1, 2003), 2003 WL 22250341, at *1.
Id.
Id.
Id.
Id. Latham's notice of appeal also challenged the superior court's reliance on his 1994 conviction, but this argument was abandoned on appeal. Id.
See id. at *4 ("The record is silent concerning why . . . Latham did not pursue a petition for review in the [Alaska] [S]upreme [C]ourt after our order dismissing the sentence appeal suggested that remedy.").
Latham then sought post-conviction relief, claiming that a 1995 law changing the jurisdiction of the court of appeals effectively eliminated his right to appeal his sentence, a right upon which he had relied when entering a plea in 1986. He therefore sought leave to withdraw the 1986 plea.
Latham, Mem. Op. J. No. 4769, 2003 WL 22250341, at *2.
Id.
The court of appeals, reviewing the superior court's denial of Latham's petition for post-conviction relief, summarized the 1995 legislation as follows:
In 1986, AS 12.55.120(a) stated that "[a] sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms of one year or more may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive." (At that time, Appellate Rule 215(a) provided that a defendant could appeal a sentence of 45 days or more.) After the 1995 amendments, AS 12.55.120(a) stated that "[a] sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding two years of unsuspended incarceration for a felony offense . . . may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive. . . ." The statute also limited the ability of a defendant to bring a sentence appeal when the sentence was imposed "in accordance with a plea agreement."
Id. (citing AS 12.55.120(a) (1986) and AS 12.55.120(a) (1995)).
Because Latham was not sentenced to any term of imprisonment when his probation was extended, the court of appeals held that he was not entitled to bring a sentence appeal under either version of AS 12.55.120(a), or even under the more lenient terms of Appellate Rule 215(a). It therefore affirmed the decision of the superior court. Latham appealed to this court, which denied his petition without issuing an opinion.
Latham, Mem. Op. J. No. 4769, 2003 WL 22250341, at *3.
Id. Latham also alleged ineffective assistance of counsel, in part because the attorney who represented him on his first appeal had abandoned the argument that the superior court erred in finding that he had violated his probation. Id. Like the superior court, however, the court of appeals held that Latham had not made out a prima facie case of ineffective assistance of counsel. Id. at *4. The court of appeals pointed out that abandoning the argument that Latham had not violated his parole was probably "a reasonable tactical choice[,] given that it was undisputed [that] Latham was convicted of a crime while on probation." Id. at *3. Cf. Alexander v. State, 578 P.2d 591, 593 (Alaska 1978) (holding that "a conviction, with the attendant constitutional safeguards, constitutes sufficient `good cause' to find that the conditions of probation have been violated and that probation should be revoked").
In its denial of post-conviction relief, the court of appeals provided a detailed procedural history of Latham's appeals, and noted that Latham's previous appeal lacked merit in light of its holding in Amin v. State. In Amin, the court of appeals held that the application of the post-1995 version of AS 12.55.120(a) to crimes committed before 1995 did not violate the ex post facto clauses of the United States and Alaska Constitutions.
Latham, Mem. Op. J. No. 4769, 2003 WL 22250341, at *1 (citing Amin v. State, 939 P.2d 413 (Alaska App. 1997)).
939 P.2d at 417 (reasoning that the legislature's amendment of AS 12.55.120(a) "did not eliminate any defendant's right to seek appellate review of a sentence [but rather] . . . altered the procedure by which appellate review can be obtained (requiring some defendants to file a petition for review rather than an appeal)").
Latham then brought a civil action in superior court purporting to represent himself, several other named parties, and "all other [p]ersons who are now or have been or will be similarly situated, John Doe 1-50,000, [and] Jane Doe 1-50,000." Adassa Zaire Amin, the defendant in the case cited by the court of appeals, and Dallas Floyd, one of the named plaintiffs in Latham's first filing, subsequently joined the case as plaintiffs. The lawsuit named a number of defendants, including the Alaska Public Defender Agency; the Alaska Office of the Public Advocate; several attorneys who had represented Latham and the other named plaintiffs; hundreds of unnamed parties who were employed by the Public Defender Agency and the Office of the Public Advocate; the State of Alaska; and present and past governors and attorney generals of Alaska.
Latham asserted several claims, including legal malpractice for failing to advise him of the changes in the 1995 statute; a massive conspiracy "to violate Alaska [r]esidents['] civil rights that are guaranteed under the . . . [d]ue [p]rocess and equal protection [clauses]"; federal civil rights violations; and violation of the state ex post facto clause. All of these claims, and the new allegations raised in Latham's amended complaint, were predicated on Latham's claim that the 1995 legislative changes had deprived him of his right to appeal his sentence.
It is unclear from Latham's complaint whether the object of the alleged conspiracy was the passage of the 1995 changes to AS 12.55.120(a); the failure to inform him of those changes; the application of the new rule to the revocation of his probation; the failure to remove the public defender who did not inform him of the changes; or some combination thereof. The most detailed legal discussion in this section concerns the power of the governor to appoint and remove the head of the Public Defender Agency. For this reason, the complaint can probably be read as asserting that the governor's alleged abuse of this power was either an object of the conspiracy or an act in furtherance of it.
Latham sought compensatory damages amounting to over $100 billion in addition to requesting class certification; an order from the superior court declaring several Alaska statutes unconstitutional; the disbarment of all defendant attorneys for a term of six years; and the voiding of all plea agreements affected by the 1995 legislation. He also sought "an [a]ward of punitive damages in an amount to be set by the [j]ury, with due consideration for the acts complained of, the annual budget of the State of Alaska, . . . [and the parties'] [l]egal [m]alpractice . . . insurance."
Latham sought one million dollars for himself, and the same amount for each of the named and unnamed plaintiffs.
The defendants moved to dismiss Latham's action under Rule 12(b)(6), and opposed Latham's request for class certification. Noting that pro se plaintiffs are generally not permitted to bring class action lawsuits, and that Latham was unlikely to be "able to fairly represent all of the other members of the class that [he was] articulating," the superior court denied class certification. The superior court heard arguments on the motion in May 2004. Although it permitted Floyd's complaint to proceed separately, it dismissed as to Latham and Amin, noting that their underlying claims challenging the 1995 legislation lacked merit and had already been adjudicated. Floyd, who did not appear before the superior court, subsequently moved to adopt Latham's oral arguments as his own. The court granted the motion, and dismissed Floyd's action "[f]or the reasons stated at the Latham oral argument." This appeal followed.
III. DISCUSSION
Latham first claims that the superior court erred in denying his motion for discovery.
This motion, however, was only denied pending consideration of the defendants' motion to dismiss for failure to state a claim. As discussed below, Latham's claims are barred by res judicata, rendering the discovery issue moot.
Cf. Lythgoe v. Guinn, 884 P.2d 1085, 1086 (Alaska 1994) (affirming superior court's decision to dismiss a lawsuit under Rule 12(b)(6) where the court had granted an order staying discovery before ruling on the motion to dismiss); Douglas v. Glacier State Tel. Co., 615 P.2d 580, 594 (Alaska 1980) ("It thus appears the Douglases would have failed to meet their burden of demonstrating a genuine issue of fact had they been given an express opportunity to do so at the time the 12(b)(6) motion was granted to Glacier State, and that their ability to do so was not inappropriately impaired by limitations on discovery efforts.").
Latham sought class certification below and, construing his brief liberally, he appears to be seeking it here. Under Alaska Civil Rule 23(a), a court may grant class certification if:
His brief lists the members of the putative class below as parties here, and states that one of the fifteen questions presented is whether the superior court erred in denying class certification, but he presents no argument in support of certification.
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
Because a representative plaintiff must "fairly and adequately protect the interests of the class," this court has held that "a pro se plaintiff . . . may not properly represent a class." For this reason, Latham is not qualified to act as the representative plaintiff. We therefore affirm the superior court's denial of certification.
Hertz v. Cleary, 835 P.2d 438, 442 n. 3 (Alaska 1992) (citing Shaffery v. Winters, 72 F.R.D. 191, 193 (S.D.N.Y. 1976) (denying class certification on the grounds that the representative party — an incarcerated pro se litigant — lacked "the qualifications and expertise [required] of plaintiff's counsel")).
Finally, Latham's substantive claims are barred by res judicata. This doctrine "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, (3) in a dispute between the same parties (or their privies) about the same cause of action." Although Latham's civil action raises a wide variety of substantive arguments, all of these arguments are predicated on the claim that the 1995 changes in AS 12.55.120(a) prevented him from seeking review of the superior court's decision to add a year to his probation. This claim has been litigated at least once by the same parties. Neither Latham nor the defendants dispute that the denial of post-conviction relief was a final judgment on the merits, or that it was issued by a court of competent jurisdiction. Because the civil action was nothing more than an attempt to relitigate an issue that had already been resolved at least once before, we hold that the superior court did not err in dismissing it.
Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997).
As the court of appeals noted, this claim is false because Latham was not affected by the 1995 changes to AS 12.55.120(a). Latham, Mem. Op. J. No. 4769, 2003 WL 22250341, at *1. He would have been unable to file an excessive sentence appeal regarding the additional year of probation under either version of the statute and, even after 1995, he retained the right to seek discretionary review of his sentence. Id. at *3.
See, e.g., Latham, Mem. Op. J. No. 4769, 2003 WL 22250341. To the extent that Latham's petition for post-conviction relief was nothing more than an attempt to rehash the previous excessive sentence appeal, the civil suit actually marks the third time the issue has been litigated. Id. at *1.
Latham also claims that the superior court erred by declining to appoint out-of-state counsel to represent him. This claim is unpersuasive. First, we have not recognized a right to appointed counsel in civil cases, with the exception of four categories of cases involving custody and child support. See Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1111 (Alaska 2002) (requiring counsel for "cases involving termination of parental rights, child custody, paternity suits, and civil contempt proceedings for nonpayment of child support") (citations omitted). The Midgett court held that there was no right to counsel for a tort claim brought by a prisoner alleging that guards used excessive force, reasoning that "[t]he private interest of a litigant in having counsel in a tort case is not as strong as . . . the right to have children, the right to custody of children, or the right to oppose the deprivation of liberty." Midgett, 53 P.3d at 1111-12. Moreover, Latham was represented by an attorney the last time he litigated these issues in the court of appeals. Latham, Mem. Op. J. No. 4769, 2003 WL 22250341, at *1.
Even if his malpractice claim were not barred by res judicata, it would be barred by his failure to obtain post-conviction relief. See Shaw v. State, Dep't of Admin., 816 P.2d 1358, 1360 (Alaska 1991) (holding that "a convicted criminal defendant must obtain post-conviction relief before pursuing an action for legal malpractice against his or her attorney," and determining that the statute of limitations for such claims would be tolled until the granting of post-conviction relief). Following remand and subsequent appeal in Shaw, we issued a second opinion in which we reaffirmed that "obtaining post-conviction relief is an element of legal malpractice in criminal cases." Shaw v. State, Dep't of Admin., 861 P.2d 566, 569 (Alaska 1993).
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the superior court.