Bush v. Reid
| Decision Date | 14 December 1973 |
| Docket Number | No. 1841,1841 |
| Citation | 516 P.2d 1215 |
| Parties | James F. BUSH, Appellant, v. James REID and Clarence Reid, Appellees. |
| Court | Alaska Supreme Court |
Barry Donnellan, Anchorage, Stephen C. Cowper, Fairbanks, Edgar Paul Boyko, Edgar Paul Boyko & Associates, Anchorage, for appellant.
No appearance for appellees.
Robert Wagstaff as amicus curiae, for American Civil Liberties Union.
Before RABINOWITZ, Chief Justice, BOOCHEVER, Justice, and EBEN H. LEWIS, Superior Court Judge.
James F. Bush originally filed this lawsuit in superior court to recover damages for injuries received in an automobile accident. At the time of the accident and the filing of the suit, appellant Bush was a felon on parole. The Reids, as defendants below, filed, and the superior court subsequently granted, a motion to dismiss the complaint on the ground that AS 11.05.070 1 suspends the civil rights of a person sentenced to imprisonment in the penitentiary for a term less than life. Bush here appeals on the grounds that the superior court erred in interpreting the statute, or, alternatively, that the statute if interpreted to bar appellant from access to the courts, violates the Alaska and United States constitutions.
AS 11.05.070 and AS 33.15.190 2 when read together clearly indicate that a parolee's civil rights, similarly to those of a prisoner, remain suspended during the time he is in the custody of the parole board. The first question presented to this court is whether the right to bring and maintain a civil suit is among the civil rights suspended by AS 11.05.070.
The general rule has been that in a jurisdiction where a convict loses his civil rights, he cannot sue while under such disability. 3 This rule has recently been applied and upheld in Kansas and Oregon. 4 New York courts consistently have held that Penal Code Sec. 510, which suspends all rights of a prisoner while incarcerated comprises the right to file a civil lawsuit. 5 Cases which allow convicts the right to initiate civil actions have been decided in the absence of statutes suspending civil rights such as the one in point here. 6
Bush argues, however, that this court should consider the use of 'the civil rights' instead of 'all civil rights' in AS 11.05.070 (), and liberally construe the provision so as not to extend denial of civil access to the courts. The substitution of 'the' for 'all', while seemingly minor, does allow the possibility that certain civil rights might not be denied. We have been given no authority for such distinction however, and find no indication that this was the intent of the legislature. In light of this absence of indications of such legislative intent, and the strong common-law authority holding that convicts are denied civil access to the courts, 7 we hold that AS 11.05.070 and AS 33.15.190 combine to deny parolees the right to initiate civil suit.
Such finding, however, does not conclude our inquiry. We must also consider Bush's contention that these statutes, if read to bar him from access to the courts, are contrary to the Alaska and United States constitutions. Bush argues that AS 11.05.070 provides for 'cruel and unusual punishment' 8 and violates the due process clauses of the Alaska and United States constitutions. 9 While we do not find the punishment provided to be so severe as to constitute 'cruel and unusual punishment', 10 nor the statute void for vagueness, we do hold that AS 33.15.190 violates the due process and equal protection clauses of the Alaska and United States constitutions insofar as it prohibits parolees from having access to the civil courts.
Both art. I, sec. 7 of the Alaska Constitution and sec. 1 of the fourteenth amendment of the United States Constitution prohibit the state from depriving any person of 'life, liberty, or property, without due process of law.' Bush contends that the right to bring a civil action for damages is property, and that therefore the suspension of such right is a deprivation of property without due process of law.
Any suggestion that a parolee was deprived by his custodial status of standing to assert a denial of due process was dissolved by the United States Supreme Court in Morrissey v. Brewer. 11 The nature of protection due 'depends on the extent to which an individual will be 'condemned to suffer grievous loss. " 12 The loss suffered must have some relationship to a 'liberty or property' interest within the ambit of the fourteenth amendment. 13
Because Bush seeks to overcome a statutory denial of access to the courts as a plaintiff, the starting point of our analysis must be Boddie v. Connecticut, 14 in which the United States Supreme Court held that a state could not deprive indigents of access to divorce tribunals by imposing a prohibitive filing fee.
Justice Harlan, writing for the Court in Boddie, recognized the centrality of the concept of due process in maintaining both order and justice in the resolution of the disputes which inevitably arise from human interaction. Upon that jurisprudential foundation he built the holding that where the state commands a monopoly over the only available legitimate means of dispute settlement and the relationship underlying the dispute is warp and woof of the fabric of society, the state may not deny access to the forum of settlement on account of poverty. 15
We note superficial distinctions between the social context of the instant dispute and that in Boddie, but upon reflection we conclude that the denial of access to the civil courts rends the fabric of justice as surely here as in Boddie.
Although the collision of automobiles results in a dispute at first subject to rpivate resolution, often the reconciliation of competing interests may be accomplished only by resort to the formal judicial process. The state exercises a monopoly over that paramount process where the 'private structuring of individual relationships and repair of their breach' has failed. 16 Unlike the overburdened debtor, who was held in United States v. Kras 17 to have such adequate redress outside the Bankruptcy Act 18 that his right of access to bankruptcy adjudication could be denied by the imposition of a substantial filing fee, the injured citizen has no recourse but to the courts when those who caused his injuries refuse to enter a consensual resolution of the conflict, whether out of recalcitrance or in the assertion of a good faith defense. We further distinguish Kras because the prospective bankrupt could pay the required filing fee in unburdensome $2.00 per week installments; 19 here the bar is absolute and no ameliorative device exists. No 'recognized, effective alternatives for the adjustment of differences remain.' 20 Thus the initial element of the Boddie analysis exists here.
The second aspect of Boddie dealt with the importance of the marital relationship. Based on the hierarchy of social values the resolution of personal injury lawsuits might not be considered of such grave importance so as to justify invalidating this statute, although in the instance of a gravely-injured plaintiff, the very quality of his future existence may be dependent upon the outcome. In Boddie Justice Harlan sought the fundamental human relationship doctrine to satisfy the due process clause only because denial of access to a divorce court does not impair a simpler 'liberty or property' interest. United States v. Kras instructs that one must search for a fundamental interest justifying access to the particular dispute resolution process in order to actuate the Boddie doctrine. 21 The Court in Kras held that debtors do not have a fundamental right to an adjudication of bankruptcy. But here we must apply the test of Morrissey: whether the individual is 'condemned to suffer grievous loss' in conjunction with an interest 'within the contemplation of the 'liberty or property' language of the Fourteenth Amendment.' 22
We begin with the understanding that a chose in action, such as Bush's claim for personal injuries, is a form of property. 23 The judivial process exists to reduce inchoate claims to money judgment where private settlement is unavailing (or to extinguish them as non-meritorious). Judgments may be executed or assigned for substantially their face value, presuming solvency of the debtor. Unlitigated claims for personal injury have slight market value. Deprivation of access to the courts thus denies both the ability to reduce the claim to a money judgment and the ability to collect the claim or otherwise convert it into property of an appreciable value and liquid nature during the parole status. Because the only reasonable use of the 'property' represented by an unlitigated claim is reduction to judgment followed by collection or assignment, deprivation of that use deprives the claimant of the whole value of his property so long as he remains non sui juris. 24 The deprivation is no less severe than the taking of disputed wages or property during the pendency of litigation. 25 Additionally, the denial of access to the courts creates an unfair leverage in the potential defendant who may avoid or reduce a meritorious claim because the ordinarily penurious state of the parolee dictates an early settlement on whatever terms are available. 26 Finally, the risk of loss of the entire property due to staleness of evidence, loss of witnesses and similar complications constitutes an unreasonable burden. We note that the tolling of the statute of limitations 27 during disability prevents the baldest of takings; nevertheless, the disability robs the parolee of the opportunity to be heard 'at a meaningful time and in a meaningful manner.' 28
We conclude that a parolee denied access to the judicial process by reason of his custodial status is thereby condemned to suffer a grievous loss of property rights protected by the due process clause of the fourteenth...
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...makes these legal rights worthless. See Patrick v. Lynden Transport, Inc. (Alaska 1988), 765 P.2d 1375, 1379; Bush v. Reid (Alaska 1973), 516 P.2d 1215, 1219; see also Ryland v. Shapiro (5th Cir.1983), 708 F.2d 967, 972 (right of access to courts guaranteed and protected from unlawful inter......
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...not only for the named defendant in litigation, but for one who, as plaintiff, seeks access to the judicial system. See Bush v. Reid, 516 P.2d 1215 (Alaska 1973). Before leaving the federal cases we should note those decisions holding constitutional rights do not turn upon whether a governm......
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...of a protected property right, namely, a chose in action. A similar result was reached by the Alaska Supreme Court in Bush v. Reid, 516 P.2d 1215 (Alaska 1973). There, a statute suspending civil rights, including the right to initiate civil actions, was held to violate both the due process ......