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Ben Latham v. Governor Sarah Palin and Alaska Attorney General Talis Colberg

March 18, 2011


Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon L. Gleason, Judge. Supreme Court No. S-13526 Superior Court No. 3AN-08-12168 CI

The opinion of the court was delivered by: Fabe, Justice.

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, email


Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.


Ben Latham sued the governor and attorney general for failing to challenge the constitutionality of 1995 legislation that modified the jurisdiction of the court of appeals to hear excessive sentence appeals. The superior court dismissed Latham's lawsuit on the grounds of res judicata and collateral estoppel. Latham now appeals. This is Latham's third lawsuit related to the 1995 legislation. In 1998 Latham filed an application for post-conviction relief seeking to withdraw a plea entered prior to the 1995 legislation. Latham argued that he had entered the plea in reliance on rights that were stripped by the legislation. The application was denied on the ground that Latham was not affected by the 1995 legislation. In 2006 Latham brought a class action lawsuit against the Alaska Public Defender Agency, past and present governors, and others, challenging the constitutionality of the 1995 legislation and the failure of public defenders to inform criminal defendants of the changes brought by this legislation. Class certification was denied and the action was dismissed.

We affirm the superior court's order dismissing Latham's current lawsuit. Prior litigation has conclusively established that Latham was not injured by the 1995 law. To the extent that Latham's claims are predicated on injury from that law, they are precluded by collateral estoppel. To the extent his claims are not predicated on harm from the 1995 law, they are barred by the doctrine of discretionary immunity.


A. Facts

The history of Latham's earlier litigation was set forth in our unpublished opinion, Latham v. Alaska Public Defender Agency.*fn1 We repeat that opinion's summary verbatim.

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.

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 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.

The court of appeals, reviewing the superior court's denial of Latham's petition for post-conviction relief, summarized ...

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