      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      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
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

ANITA HENDRICKS-PEARCE, as )
Personal Representative of the
                           )
Estate of DEWELL W. PEARCE,)
                           )                            Supreme Court No. S-14820
              Appellant,   )
                           )                            Superior Court No. 3AN-08-09147 CI
    v.                     )
                           )                            OPINION
STATE OF ALASKA,           )
DEPARTMENT OF CORRECTIONS, )                            No. 6899 - April 25, 2014
                           )

              Appellee.    )

                           )


              Appeal from the Superior Court of the State of Alaska, Third

              Judicial District, Anchorage, Eric A. Aarseth, Judge.


              Appearances: Ted Stepovich, Law Office of Ted Stepovich,

              Anchorage, for Appellant. Dale W. House, Senior Assistant

              Attorney General, Anchorage, and Michael C. Geraghty,

              Attorney General, Juneau, for Appellee.


              Before: Fabe, Chief Justice, Winfree, Maassen, and Bolger,

              Justices. [Stowers, Justice, not participating] 


              BOLGER, Justice.

              FABE, Chief Justice, with whom MAASSEN, Justice, joins, dissenting.


I.    INTRODUCTION
              A prisoner recovered a medical malpractice judgment against the State of
Alaska Department of Corrections. But when DOC paid the judgment, it deducted the
expenses it had incurred for unrelated medical care provided to the prisoner by outside
providers. DOC then brought an action seeking a declaratory judgment that DOC had
the statutory right to reimbursement from the prisoner for medical expenses incurred on
his behalf. In this appeal, the prisoner’s estate argues that only prisoners with access to
the specified funding sources listed in the statute are liable for the cost of outside medical
care. But we conclude that the statute entitles DOC to reimbursement from a prisoner
regardless of whether the medical care is provided inside the prison or made available
through an outside provider. We also conclude that the common fund doctrine does not
require DOC to share the cost of the prisoner’s attorney’s fees for the medical
malpractice action.
II.    FACTS AND PROCEEDINGS
       A.     Legal Framework
              The State has a statutory and constitutional obligation to provide necessary
medical care to all prisoners regardless of their ability to pay.1 Although the State
provides medical care through DOC employees and contractors (in-house medical care),
some medical conditions require treatment by outside providers (outside medical care).2
Alaska Statute 33.30.028 sets out the prisoner’s responsibility for medical expenses
incurred during incarceration.3 DOC has also adopted a regulation, 22 AAC 05.121, that


       1
            AS 33.30.011(4)(A); State, Dep’t of Corr. v. Hendricks-Pearce, 254 P.3d
1088, 1089 (Alaska 2011) (citing AS 33.30.011(4)(A); Abraham v. State, 585 P.2d 526,
531 (Alaska 1978); Rust v. State, 582 P.2d 134, 143 (Alaska 1978)).
       2
           Hendricks-Pearce, 254 P.3d at 1089-90 (citing 22 Alaska Administrative
Code (AAC) 05.121(b) (2004)).
       3
              AS 33.30.028 provides, in relevant part:

                      (a) Notwithstanding any other provision of law, the
                                                                         (continued...)

                                             -2-                                        6899

outlines the prisoner’s responsibility for payment for these services, with particular focus
on the co-payment system.
       B.	    Prior Litigation And First Appeal
              Most of the underlying facts of this case have already been reviewed by this
court in State, Department of Corrections v. Hendricks-Pearce.4 Dewell Pearce was a




       3	
              (...continued)
              liability for payment of the costs of medical . . . care provided
              or made available to a prisoner committed to the custody of
              the commissioner is, subject to (b) of this section, the
              responsibility of the prisoner and the

                     (1) prisoner’s insurer if the prisoner is insured . . . ;

                    (2) Department of Health and Social Services if the
              prisoner is eligible for assistance . . . ;

                    (3) United States Department of Veterans Affairs if the
              prisoner is eligible for veterans’ [medical] benefits . . . ;

                    (4) United States Public Health Service, the Indian
              Health Service, or any affiliated group or agency if the
              prisoner is [eligible]; and

                    (5) parent or guardian of the prisoner if the prisoner is
              under the age of 18.

                     (b) The commissioner shall require prisoners who are
              without resources under (a) of this section to pay the costs of
              medical . . . care provided to them by the department. At a
              minimum, the prisoner shall be required to pay a portion of
              the costs based upon the prisoner’s ability to pay.
       4
              254 P.3d 1088.

                                             -3-	                                     6899

prisoner from 1994 to 2008.5 During his incarceration the State provided Pearce medical
care for several conditions;6 the State paid $147,494.94 to outside medical providers.
While in custody, Pearce sued the State for medical malpractice and was awarded a
$369,277.88 judgment against the State in 2008.7 The State paid part of the judgment
in May 2008, but withheld $140,847 as reimbursement for medical expenses that were
unrelated to the injuries giving rise to the malpractice suit.8 In July 2008 the State filed
an action for declaratory relief regarding its right to reimbursement.
              The parties disputed whether the State was entitled to reimbursement from
Pearce.9 Because Pearce had been released before the State filed its declaratory judgment
action, the parties disagreed on whether AS 33.30.028 applied to former prisoners after
their release from custody.10 The superior court determined that AS 33.30.028 did not
apply to former prisoners.11 It therefore dismissed the State’s suit and ordered the State
to pay Pearce $140,847 (the amount the State had withheld from the original medical
malpractice judgment) plus interest.




       5
              Id. at 1090. “Dewell Pearce died in November 2009 and Anita
Hendricks–Pearce, his estate’s personal representative, was substituted in his place.” Id.
at 1090 n.3. For ease of reference we use “Pearce” throughout this opinion to refer to
both the prisoner and his estate.
       6
              Id.
       7
              Id.
       8
              Id.
       9
              Id.
       10
              Id.
       11
              Id. at 1091.

                                            -4-                                       6899

              On appeal, this court reversed the superior court’s ruling.12 We stated that
“[t]he primary goal of AS 33.30.028 is reducing medical costs”13 and observed that
“preventing the State from collecting from prisoners to the fullest extent possible would
contravene the statute’s cost-saving purpose.”14 We therefore held that for the purposes
of AS 33.30.028 the term “prisoner” includes former prisoners.15
              This court remanded two separate issues — then not yet ruled upon — to
the superior court: (1) whether AS 33.30.028 entitles the State to reimbursement for the
cost of outside medical care from a prisoner without the funding sources identified in
AS 33.30.028(a);16 and (2) whether the State’s recovery, if allowed, was subject to a
claim for attorney’s fees and costs under the common fund doctrine.17
       C.     Remand And Subsequent Appeal
              1.     The parties’ arguments
              On remand, both parties moved for summary judgment. Each offered a
distinctly different interpretation of AS 33.30.028. Pearce argued that the statute allows
reimbursement for the cost of outside medical care only from the specified funding
sources identified in subsection .028(a). Pearce’s reading of the statute rested on two
distinctions: the first distinction related to the type of medical care at issue (whether it




       12
              Id. at 1093.
       13
              Id. at 1092.
       14
              Id. at 1093.
       15
              Id.
       16
              Id. at 1093-95.
       17
              Id. at 1095 n.25.

                                            -5-                                       6899

was in-house or outside), and the second distinction compared prisoners with access to
the specified funding sources listed in subsection .028(a) to those without.
             Pearce argued that the statute distinguishes between two types of medical
care — care “provided” by DOC (in-house medical care) and care “made available” by
DOC (outside medical care) — and that under subsection .028(b), prisoners who lacked
the .028(a)-specified funding sources are required to pay only for care “provided to them
by the department.” Pearce therefore concluded that only prisoners with access to those
specified funding sources were liable for the cost of outside medical care “made
available” to them. Pearce contended that his reading of the statute was supported by the
DOC regulation concerning prisoner co-payments. Pearce also argued that his attorney’s
fees should be deductible from any recovery made by the State under the common fund
doctrine.
             The State argued that liability for the cost of outside medical care is
imposed on all prisoners under AS 33.30.028, regardless of access to the .028(a)­
specified funding sources, and that the legislative history does not support a distinction
between medical care “provided” and care “made available.” It contended that the
statute itself made no distinction between in-house and outside medical care and that the
regulation cited by Pearce was irrelevant to the statutory interpretation question because
that regulation concerned co-payments rather than reimbursement.18 Finally, the State
argued that any recovery it made was not subject to a pro rata reduction for attorney’s
fees.




        18
            See 22 AAC 05.121(b) (providing that prisoners are financially liable for
a co-payment for in-house medical care).

                                           -6-                                      6899
              2.     The superior court’s analysis
              The superior court ruled in favor of DOC on both issues. It determined that
AS 33.30.028 entitled DOC to reimbursement for the costs of outside medical care from
prisoners like Pearce who lacked the specified funding sources identified in
subsection .028(a). It determined that subsection .028(a) identified two categories of
medical care — that “provided” and that “made available” to the prisoner. But the court
concluded that subsection .028(a) assigned financial liability for both categories of care
to the prisoner. The court determined that the distinction between care “provided” and
care “made available” is relevant only in subsection .028(b), which requires some level
of payment for care only when the care is “provided               to [the prisoner] by the
department.”19
              Turning to the legislative history of the statute, the court found that
subsection .028(b) was intended to deter prisoners’ frivolous use of medical care, rather
than to limit a prisoner’s liability under subsection .028(a). The court also found that the
legislative record reflected the legislature’s intent to grant the State the ability to recover
the full cost of medical care “if at some point in the present or future the prisoner had
sufficient funds.”
              The superior court also ruled that the common fund doctrine was not
applicable because Pearce and his attorney did not confer a benefit upon the State
through the medical malpractice lawsuit. It therefore concluded that DOC’s recovery
was not subject to a pro rata reduction for attorney’s fees and awarded judgment against




       19
              AS 33.30.028(b).

                                             -7-                                         6899
Pearce’s estate in the amount of $149,730.95, including attorney’s fees.20 Pearce appeals
both rulings.
III.	   STANDARD OF REVIEW
                This case primarily involves a matter of statutory interpretation. Statutory
interpretation is a question of law to which we apply our independent judgment.21
However,“an agency’s interpretation of a law within its area of jurisdiction can help
resolve lingering ambiguity, particularly when the agency’s interpretation is
longstanding.”22 Whether the common fund doctrine applies to this case is also a
question of law that we review independently.23
IV.	    DISCUSSION
        A.	     A Prisoner Is Liable For The Costs Of Medical Care Provided Or
                Made Available.
                As noted above, under AS 33.30.028(a) “the liability for payment of the
costs of medical . . . care provided or made available to a prisoner . . . is, subject to (b)
of this section, the responsibility of the prisoner . . . .” (Emphasis added.) The following
subsection, AS 33.30.028(b), states that “[t]he commissioner shall require prisoners who

        20
              The superior court’s order awards DOC a principal amount of $137,010.35
plus $12,720.60 in attorney’s fees for a total of $149,730.95. The record does not
indicate how the superior court arrived at the figure of $137,010.35; the State claimed
to have spent $147,494.94 on outside medical care for Pearce and withheld $140,847.00
from the final judgment award in the 2008 medical malpractice case. Neither party has
appealed the amount of the award.
        21
            Native Vill. of Tununak v. State, Dep’t of Health & Soc. Servs., 303 P.3d
431, 440 (Alaska 2013).
        22
            Bartley v. State, Dep’t of Admin., Teacher’s Ret. Bd., 110 P.3d 1254, 1261
(Alaska 2005) (citing Union Oil Co. v. State, Dep’t of Revenue, 560 P.2d 21, 23, 25
(Alaska 1977)).
        23
                See Edwards v. Alaska Pulp Corp., 920 P.2d 751, 756 (Alaska 1996).

                                             -8-	                                      6899

are without resources under (a) . . . to pay the costs of medical . . . care provided to them
by the department. At a minimum, the prisoner shall be required to pay a portion of the
costs based upon the prisoner’s ability to pay.”
              When we interpret this statutory language we begin with the plain meaning
of the statutory text.24 The legislative history of a statute can sometimes suggest a
different meaning, but “the plainer the language of the statute, the more convincing
contrary legislative history must be.”25 “Even if legislative history is ‘somewhat
contrary’ to the plain meaning of a statute, plain meaning still controls.”26
              Pearce argues that under subsection (a), in-house services are “provided”
to a prisoner and outside medical services are “made available” to a prisoner. Pearce
argues that subsection (b) means that a prisoner who has no insurance or other special
resources under (a) is only required to pay a co-pay for in-house services and is not
required to pay anything for outside medical services. In response, the State argues that
all medical services are both “provided” and “made available” to a prisoner who receives
medical care. The superior court concluded that this distinction makes no difference in
this case because subsection (a) makes a prisoner liable for the costs of all medical care.
              We conclude that the superior court’s interpretation of this statute is most
consistent with its plain meaning. The language of subsection (a) makes a prisoner liable
for all medical care regardless of whether it is “provided” or “made available” to the
prisoner. Subsection (b) requires minimum payment terms: the commissioner, at a
minimum, must require prisoners without adequate resources to make a co-payment for


       24
              Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).
       25
              Id. (internal quotation marks omitted).
       26
              Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 387 (Alaska 2013)
(citing Oels v. Anchorage Police Dep’t Emps. Ass’n, 279 P.3d 589, 597 (Alaska 2012)).

                                            -9-                                        6899

services “provided” to them. But this subsection does not set a maximum payment for
services “provided,” nor does it set any limitations on liability for services “made
available” to the prisoner.
              The dissent argues that our reading of the statute renders superfluous the
statutory clause making subsection (a) “subject to” subsection (b). However, under our
interpretation, subsection (a) reflects a reasonable presumption that there will be dual
liability for the prisoner and the listed collateral payers, which is made subject to
subsection (b): if there are no collateral payers, and the prisoner is otherwise unable to
pay in full, the commissioner must collect at least a minimum payment from the prisoner
for all in-house services. Even if our reading of the statute did render the “subject to”
clause redundant, such an interpretation is closer to the text than the substantial negative
implication proposed by the dissenting opinion: namely, that the legislature’s silence
regarding the situation in which a prisoner has no collateral resources warrants the
addition to subsection (b) of a provision relieving the prisoner of all responsibility to pay
for outside services even if the prisoner has adequate personal resources to pay for those
services.
              In the same vein, the dissent argues that our reading of the statute renders
the list of collateral payers in subsection (a) redundant because if the prisoner is
responsible for all of his medical costs, then listing potential collateral sources for
payment is unnecessary. However, the enumeration of possible collateral sources serves
at least three purposes: (1) it gives notice to potential collateral payers that they may be
liable for medical costs if they are associated with a prisoner as described in the statute;
(2) it provides prisoners with guidance about their payment and coverage options; and
(3) it provides the DOC with a list of alternative payers to collect from. These are
reasonable purposes that give meaning to this statutory language.



                                            -10-                                       6899

              To satisfy the requirements of AS 33.30.028(b), DOC adopted the
regulation found at 22 AAC 05.121. Subsection (b)(1) of this regulation requires a
prisoner to make a co-payment for medical services provided to the prisoner by the
department through department employees or contractors. Subsection (b)(2) requires a
prisoner to arrange to obtain payment or coverage from one or more of the responsible
parties set out in AS 33.30.028(a) for services not provided through department
employees or contractors.
              This portion of the regulation supports the distinction between in-house
services and outside services that Pearce relies on. But the regulation does not conflict
with our reading of the statute.       Subsection (b) of the statute mandates that the
commissioner charge prisoners at least a minimal amount for in-house services rendered.
The regulation implements that command and properly goes no further. Like the statute,
the regulation says nothing of divesting the prisoner lacking collateral resources of
liability for outside services if the prisoner has adequate personal resources to pay for
those services.27 Indeed, the regulation makes no provision at all for the situation in
which a prisoner without collateral resources has received outside services, which is
appropriate in light of the statute’s silence on the issue.
              One could argue that our reading of dual liability would render portions of
the regulation incomplete or redundant. For example, 22 AAC 05.121(e) states that “a
prisoner may be charged for the full costs of health care services [provided by outside
providers], resulting from a self-inflicted injury, or an injury to the prisoner or to another
prisoner resulting from an assault or other violation of facility rules or state law . . . .”


       27
             In contrast, the regulation does state a different situation in which the
department will not pursue payment: where certain inspections, examinations, or testing
are required by other state regulations or are necessary to protect the health of others.
See 22 AAC 05.121(c).

                                            -11-                                        6899
This subsection seems unnecessary if AS 33.30.028(a) makes the prisoner liable for all
medical care. But we read this subsection as a clarification that the department may
collect full payment from a prisoner who inflicts an injury without regard to the
minimum co-payment that would otherwise apply. Interpreted in this fashion, the
regulation does not conflict with the our reading of AS 33.30.028(a).
             The superior court’s interpretation of this statute is also consistent with its
legislative history. We have already recognized that the primary purpose of this statute
is to reduce medical costs:
             The primary goal of AS 33.30.028 is reducing medical costs:
             the legislation that led to the reimbursement statute’s
             enactment was directed at controlling the costs incurred in
             correctional institutions, and the sponsor statement indicated
             the proposed measures would reduce some of the costs of
             inmate health care and allow [the State] to focus its limited
             budget on its true mission. Although the legislative history
             does not explicitly address extending liability to former
             prisoners, preventing the State from collecting from prisoners
             to the fullest extent possible would contravene the statute’s
             cost-saving purpose and is not justified by another interest
             evident from the face of the statute or its legislative history.[28]
In this case, the superior court’s decision to include a prisoner’s personal wealth among
those resources subject to reimbursement is consistent with the statute’s primary purpose
of reducing the DOC’s medical costs.
             Moreover, the legislative record reflects an intent to take advantage of any
financial resources to which a prisoner might have access. In a hearing before the House
Finance Committee, a member of Representative Mulder’s staff noted that “there will be
individuals . . . that will have other coverage or resources” and that “[t]he legislation


      28
             Hendricks-Pearce, 254 P.3d at 1092-93 (internal citations and quotations
omitted).

                                            -12-                                      6899
allows the Department to become a secondary payer to the primary health care
provider.”29 The staffer also stated that “the intent is to allow the Department to take
advantage of other coverage that is available or to access the resources of someone that
is independently wealthy.”30 These statements suggest that the committee intended that
a prisoner’s personal wealth be included within the coverage of this statute.
              The dissent argues that, rather than cost-saving generally, the legislature
had a more specific purpose in mind when it drafted the statute: “to deter frivolous
prisoner medical complaints and the overuse of medical services.” And the dissent
argues that this more specific goal, while perfectly consistent with an overarching desire
to cut costs, “outweighed any subsidiary goal of recovering costs.” Although we do not
agree with that view, even if it is taken as true, our reading of the statute is better suited
to achieving this deterrence.
              Under our reading of this statute, a prisoner will be liable for medical costs,
those rendered both in-house and outside the prison, whether or not he has collateral
resources. This rule will certainly deter prisoners from overuse of medical services more
than a rule relieving a prisoner of all responsibility. If Pearce’s interpretation were
adopted, there would be nothing to deter a prisoner from seeking outside care other than
the requirement that he first obtain a referral from an in-house provider. But, whether
or not prior approval is required, a prisoner’s liability for the cost of outside treatment
will also act as a reasonable deterrent. This is the same reasonable deterrent that affects



       29
            Minutes, House Finance Comm. Hearing on H.B. 219, 19th Leg. 1st Sess.
(Apr. 20, 1995) (testimony of Dennis DeWitt, Legislative Assistant to Rep. Eldon
Mulder) (emphasis added).
       30
            Minutes, House Finance Comm. Hearing on H.B. 219, 19th Leg. 1st Sess.
(Apr. 20, 1995) (testimony of Dennis DeWitt, Legislative Assistant to Rep. Eldon
Mulder) (emphasis added).

                                            -13-                                        6899

patients outside a prison; any patient may reasonably choose to decline unnecessary
medical services, especially if he has no collateral resources. If this statute was intended
to deter unnecessary treatment by holding prisoners financially responsible for their
treatment decisions, such deterrence will be mitigated if wealthy prisoners are relieved
of their medical expenses.
              Thus, there is no reason why wealthy prisoners should be exempted from
liability in a bill designed either to deter over-use of medical services or to reduce costs.
The dissenting opinion suggests that one possible motivation for such an exemption
could be to reduce poverty and recidivism. But there is no indication that the legislature
believed that making prisoners responsible for their own bills would promote recidivism.
From the legislative history we have reviewed, it seems more likely that the legislature
concluded that controlling these medical costs will allow DOC “to focus its limited
budget on its true mission,”31 that is, to maintain correctional facilities, to provide
necessary treatment, and to establish programs that are calculated to protect the public
and promote rehabilitation.32
              Medical services in this country are extremely expensive for all patients,
both inside and outside prison walls.33 Making law-abiding Alaskans responsible for
their own health care decisions and excusing prisoners from such liability could be



       31
              Hendricks-Pearce, 254 P.3d at 1092-93.
       32
              See AS 33.30.011.
       33
            See, e.g., Dan Mangan, Medical Bills Are the Biggest Cause of US
Bankruptcy, CNBC Health Care (Jun e 25, 20 13 , 2:29 PM ),
http://www.cnbc.com/id/100840148; Jason Kane, Report: 1 in 3 Americans Burdened
With Medical Bills, The Rundown, PBS NewsHour (March 8, 2010, 10:16 AM),
http://www.pbs.org/newshour/rundown/2012/03/report-a-third-of-americans-burdene
d-with-medical-bills.html.

                                            -14-                                       6899

considered deeply unfair. Indeed, if the cost of paying for a prisoner’s health care is
absorbed by DOC, then the public will bear that cost in taxes or foregone opportunities.
              In summary, the legislative history is consistent with a natural reading of
AS 33.30.028(a), requiring a prisoner to be liable for the cost of all medical services
provided or made available to the prisoner. The implementing regulation is not
inconsistent with this interpretation. The superior court properly concluded that Pearce
was liable for payment of the cost of outside medical care made available to him during
his incarceration.
       B.	    The Common Fund Doctrine Does Not Apply To The State’s
              Reimbursement Claim.
              Pearce also argues that the superior court should have deducted a pro rata
share of the attorney’s fees he incurred pursuing the medical malpractice judgment from
the funds the State retained to pay for his medical care. The common fund doctrine
provides that a litigant or “lawyer who recovers a common fund for the benefit of
persons other than himself or his client is entitled to a reasonable attorney’s fee from the
fund as a whole. The doctrine is implicated any time one litigant’s success releases
well-defined benefits for a limited and identifiable group of others.”34
              The common fund doctrine has been applied to subrogation and class action
cases where the plaintiff’s attorneys obtained a specific recovery for the benefit of other
parties.35 For example, when an employee recovers on a personal injury or wrongful
death claim against a third party, a pro rata share of the employee’s attorney’s fees and



       34
             Alaska Native Tribal Health Consortium v. Settlement Funds Held For E.R.,
84 P.3d 418, 433-34 (Alaska 2004) (internal quotations and citations omitted).
       35
             Edwards v. Alaska Pulp Corp., 920 P.2d 751, 756 (Alaska 1996) (applying
common fund analysis to class action case); Cooper v. Argonaut Ins. Cos., 556 P.2d 525,
527 (Alaska 1976) (applying doctrine to workers’ compensation reimbursement statute).

                                           -15-	                                      6899

costs is deducted from the workers’ compensation lien for the same injury.36 Likewise,
when a hospital accrues a medical lien for care provided to an injured patient, the
patient’s attorney fees must be deducted before the lien is paid from a settlement for
those injuries.37
              But the common fund doctrine should not be extended to general obligations
that existed before the plaintiff’s injury — obligations that were not dependent on the
creation of a settlement fund. In Alaska Native Tribal Health Consortium v. Settlement
Funds, this Court cited with approval the New Mexico Supreme Court’s decision
distinguishing indirect beneficiaries, such as utility creditors and mortgage holders, from
the hospital that directly benefits from a hospital lien.38 Other jurisdictions have declined
to apply the common fund doctrine to general creditors of a plaintiff simply because the
plaintiff’s recovery creates a new asset.39 In these cases, the plaintiff is not acting on
behalf of its creditors in pursuing its claim. The creditors’ claims are independent of the
plaintiff’s claim; the debts to the creditors exist regardless of the outcome of the litigation.
              In this case, the medical expenses Pearce incurred in prison were unrelated
to the injuries he sustained from medical malpractice. The State became Pearce’s creditor
for his unrelated medical expenses, but the State had no special lien on his malpractice

        36
               Cooper, 556 P.2d at 525-28.
        37
               Alaska Native Tribal Health Consortium, 84 P.3d at 433-34.
        38
            Id. at 435 (citing Martinez v. St. Joseph Healthcare Sys., 871 P.2d 1363
(N.M. 1994)).
        39
              In re Key West Rest. & Lounge, Inc., 54 B.R. 978, 985 (Bankr. N.D. Ill.
1985); Watkins v. GMAC Fin. Servs., 785 N.E. 2d 40, 45 (Ill. App. Ct. 2003); TM Ryan
Co. v. 5350 S. Shore, LLC, 836 N.E.2d 803, 811 (Ill. App. Ct. 2005); Hilton Oil Transp.
v. Oil Transp. Co., S.A., 659 So.2d 1141, 1154, n.7 (Fla. Dist. Ct. App. 1995); Villanueva
v. Wolff, 419 A.2d 1141, 1147 (N.J. Super. Ct. App. Div. 1980); Leischner v. Alldridge,
790 P.2d 1234, 1237 (Wash. 1990) (en banc).

                                             -16-                                         6899

recovery. Pearce’s attorneys did not create any special fund that benefitted the State, so
the common fund doctrine does not apply to this recovery.
V.    CONCLUSION
             We conclude that AS 33.30.028(a) allows the DOC to seek reimbursement
for the costs of outside medical care, and that the common fund doctrine does not apply
to this case. We therefore AFFIRM the superior court’s judgment.




                                          -17-                                      6899

FABE, Chief Justice, with whom MAASSEN, Justice, joins, dissenting.
             In my view, the court’s interpretation of AS 33.30.028 is incorrect, and
traditional methods of statutory construction — looking to the statute’s text, legislative
history and purpose, longstanding interpretations of administrative regulations, and policy
considerations — all require the opposite interpretation. I would hold that AS 33.30.028
does not render a prisoner lacking collateral resources enumerated in subsection (a)
personally liable for the costs of medical care obtained from outside providers.
Accordingly, I respectfully dissent and do not join the plurality opinion.1
             Alaska Statute 33.30.028 is divided into two subsections. Subsection (a)
states that medical care “provided or made available to a prisoner” is “the responsibility
of the prisoner and the [five enumerated third-party collateral sources, such as insurers
and government welfare agencies].” Subsection (a)’s assignment of liability is made
“subject to (b) of this section.” Subsection (b) directs the Department of Corrections
(DOC) to “require prisoners who are without resources under (a) of this section” to pay
for medical care “provided to them by the department” and also goes on to specify a
minimum payment “based on the prisoner’s ability to pay.”2 This appeal raises the


       1
              Because the court is evenly divided on the issue in this case, the plurality’s
opinion has the effect of affirming the superior court’s ruling but will have no
precedential value. See Alaska R. App. P. 106(a) (“In an appeal to the supreme court,
any issue or point on appeal on which the justices are equally divided is affirmed in that
appeal, but the issue or point decided by an equally divided court shall not have
precedential effect.”); Barnica v. Kenai Peninsula Borough Sch. Dist., 46 P.3d 974, 982
n.1 (Alaska 2002) (Bryner, J., dissenting).
       2
              AS 33.30.028 reads, in relevant part:
              (a)    . . . [T]he liability for payment of the costs of
              medical . . . care provided or made available to a prisoner . . .
              is, subject to (b) of this section, the responsibility of the
                                                                               (continued...)

                                           -18-                                        6899

question of whether a prisoner who has received medical care outside of the DOC system
but does not have access to one of the enumerated collateral sources listed in
subsection (a) is rendered personally liable for the cost of the outside medical services
under AS 33.30.028.
             In my view, the best reading of this statute is that subsection (a) creates
personal liability for all types of health care — both that provided in-house by DOC staff
and contractors and that made available by outside medical providers — when the
prisoner has a collateral source enumerated in subsection (a). But when a prisoner has no
such collateral source, then subsections (a) and (b), read in conjunction, create personal
liability on the part of the prisoner only for health care provided in-house by DOC but not
for care rendered by outside health care professionals.


      2
             (...continued)
              prisoner and the
                     (1)    prisoner’s insurer if the prisoner is insured . . . ;
                    (2)      Department of Health and Social Services if the
              prisoner is eligible for assistance . . . ;
                     (3)    United States Department of Veterans Affairs if
              the prisoner is eligible for veterans’ benefits . . . ;
                      (4)  United States Public Health Service, the Indian
              Health Service, or any affiliated group or agency if the
              prisoner is a Native American and is entitled to medical
              care . . . ;
                     (5)    parent or guardian of the prisoner if the prisoner
              is under the age of 18.
              (b)    The [DOC] commissioner shall require prisoners who
              are without resources under (a) of this section to pay the costs
              of medical . . . care provided to them by the department. At
              a minimum, the prisoner shall be required to pay a portion of
              the costs based upon the prisoner’s ability to pay.

                                            -19-                                     6899

              The court today takes a different view. It interprets this statute’s “plain” and
“natural meaning” as making the prisoner personally liable for all types of medical care,
both in-house and outside — full stop — and creating third-party liability for those
sources enumerated in subsection (a). The court interprets subsection (b) as having no
effect whatsoever on subsection (a)’s assignment of liability, concluding instead that
subsection (b) is merely a directive to DOC to charge a minimum payment to prisoners
without resources enumerated in subsection (a) for care provided in-house by DOC.3 The
court reasons that (1) the statutory language “plain[ly]”4 compels this “natural reading,”5
(2) this interpretation is consistent with the statute’s “primary purpose . . . to reduce
medical costs”6 and the statute’s legislative history indicating “an intent to take advantage
of any financial resources to which a prisoner might have access,”7 and (3) DOC’s
regulations implementing this statute are not inconsistent with this interpretation.8 In my
view, the court has essentially redrafted the statute, disregarding its plain text, relevant
legislative history, and a contrary interpretation by DOC. In doing so, the court has
enacted a new policy that will harm the State’s fiscal and public safety interests in
supporting the successful reentry of prisoners into the community upon their release from
incarceration.




       3
                 Op. at 9-10.

       4
                 Id. at 9.

       5

                 Id. at 15.
       6
                 Id. at 12.
       7
                 Id.
       8
                 Id. at 11-12.

                                            -20-                                        6899

              The court’s interpretation is foreclosed by the text of the statute. Subsection
(a) specifically conditions its assignment of liability on subsection (b): “[T]he liability
for payment of the costs of medical . . . care provided or made available to a prisoner . . .
is, subject to (b) of this section, the responsibility of the prisoner and the [enumerated
collateral sources] . . . .”9 The definition of “subject to”10 and the legislature’s deliberate
choice to include it in this statute11 show that subsection (a)’s assignment of liability must
be read in conjunction with, and is limited by, subsection (b). If the court were correct,
and subsection (a) established a flat assignment of personal liability while subsection (b)
merely established an unrelated directive for DOC to charge mandatory minimum fees in
certain cases regarding in-house care, then the subject-to clause would serve no purpose,
and its deletion would not alter the meaning of the statute at all. But “[w]e must . . .
presume ‘that the legislature intended every word, sentence, or provision of a statute to
have some purpose, force, and effect, and that no words or provisions are superfluous.’ ”12



        9
               AS 33.30.028(a) (emphasis added).
        10
               See BLACK ’S LAW D ICTIONARY 1425 (6th ed. 1990) (defining “subject to”
as “[l]iable, subordinate, subservient, inferior, obedient to; governed or affected by;
provided that; provided; answerable for”); W EBSTER ’S N EW INTERNATIONAL
D ICTIONARY 2509 (2d ed. 1959) (“Being under the contingency of; dependent upon or
exposed to (some contingent action); — with to.” (emphasis in original)).
        11
              The legislature routinely makes one provision in a statute “subject to”
another, limiting a party’s liability resulting from the first provision by referencing a
second provision in such a way as to subtract liability from the first provision. See, e.g.,
ch. 70, § 14, SLA 1995 (amending the then-current version of AS 33.30.071(a) to
declare that “the [State’s] responsibility for providing necessary medical services for
prisoners remains with the commissioner of corrections . . . subject to the responsibility
for payment under AS 33.30.028”).
        12
            Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)
(quoting Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 530-31 (Alaska 1993)).

                                             -21-                                        6899

The court today “step[s] over the line of interpretation and engag[es] in legislation”13 by
reading out subsection (a)’s subject-to clause from the statute.
              I would avoid such judicial redrafting of a legislative enactment by
interpreting the statute as written: Subsection (b)’s requirement that DOC recoup some
of the costs for in-house care “provided” by DOC for those prisoners without sources
enumerated in subsection (a) must limit, by means of the subject-to clause,
subsection (a)’s assignment of liability. The only interpretation that preserves all the
words of the statute would draw on the distinction between subsection (b)’s use of
“provided” and subsection (a)’s use of both “provided” and “made available.” This
distinction, in conjunction with the subject-to clause, would lead to the conclusion that
subsection (a) makes a prisoner personally liable for medical costs provided in-house and
for medical costs made available outside of DOC where the prisoner has a collateral
source enumerated in subsection (a), but that subsection (a) does not make a prisoner
personally liable for medical care rendered by outside healthcare professionals where the
prisoner lacks an enumerated source from subsection (a). This interpretation respects the
legislature’s drafting choices, requires no additions to the statute, and makes no
subtractions from the statute. Unfortunately, the same cannot be said of the court’s
interpretation.
              The court responds to my argument by asserting that the subject-to clause
is not superfluous because subsection (b) directs DOC to collect payment from prisoners
under certain conditions.14 This assertion simply ignores the meaning of “subject to” in
the statutory phrase “subject to (b) of this section.” The court would read this text, which



       13
         Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978) (quoting
Commonwealth v. Armao, 286 A.2d 626, 632 (Pa. 1972)).
       14
                  Op. at 9-10.

                                           -22-                                       6899
plainly limits subsection (a)’s assignment of liability by demanding that it be read in
conjunction with a limitation in subsection (b), as merely indicating to the reader: “And
subsection (b) also exists, although it has no effect here.” The court then claims that
“[e]ven if our reading of the statute did render the ‘subject to’ clause redundant,” that
redundancy “is closer to the text” than my interpretation.15 But my interpretation calls for
no addition to, subtraction from, or alteration of the text of the statute. All it requires is
acknowledging the meaning of “subject to,” reading the two clauses in conjunction, and
respecting the means employed by the legislature when it chose the text of AS 33.30.028.
My interpretation does not create a “substantial negative implication”;16 rather, it follows
the explicit statutory directive to read subsection (a) in conjunction with, and as limited
by, subsection (b).
              The court’s interpretation of AS 33.30.028 creates another surplusage
problem. Subsection (a) enumerates five collateral sources that are “responsib[le]” for
the in-house and outside medical care costs of prisoners. If the court were correct that
subsection (a) gives the prisoner responsibility for all costs incurred for all types of
medical care, then enumeration of specific collateral sources would be redundant. Even
without enumeration, DOC could still invoice those who are already derivatively liable
for the prisoner’s health care, such as the prisoner’s insurer or a public agency providing
benefits to the prisoner. The only possible purpose for enumeration of collateral sources
in (a) that would not render the enumeration mere surplusage would be to limit, in




        15
               Id. at 10.
        16
               Id.

                                            -23-                                        6899
conjunction with subsection (b) and the subject-to clause of subsection (a), prisoner
liability for certain types of care where the prisoner lacks an enumerated source.17
             The court responds by hypothesizing three purposes for enumerating
collateral sources. But none of the court’s reasons seem plausible. The court asserts that
enumerating sources in subsection (a) “gives notice to potential collateral payers,”18 but
it could hardly be news to an insurer that it is liable for medical costs covered by its
contract with the insured.19 It could hardly be news to a government agency that it would
provide benefits for people who meet the qualifications for benefits.20 And it could hardly
be news to parents and guardians that they may be liable for the medical care of their
minor children.21 The court also asserts that enumeration “provides prisoners with


       17
              Enumeration of sources in subsection (a) does not, on its own, create third-
party liability on the part of anyone. In order to have the third-party deemed
“responsib[le]” by AS 33.30.028(a), the prisoner must already be eligible for benefits
from a public agency or have an insurance plan that covers such costs. Indeed, the state
legislature simply would not have the power to make a federal agency like the United
States Department of Veterans Affairs “responsib[le]” for a prisoner’s medical costs
unless federal law already provided for such responsibility. Accordingly, the court may
not rely on the creation of third-party liability as a non-surplusage purpose for the
enumeration in subsection (a).
       18
              Op. at 10.
       19
              See AS 33.30.028(a)(1) (making certain types of medical care the
“responsibility” of the “prisoner’s insurer if the prisoner is insured”).
       20
               See AS 33.30.028(a)(2)-(4) (making certain types of medical care the
“responsibility” of the Department of Health and Social Services and the United States
Department of Veterans Affairs, “if the prisoner is eligible,” and the United States Public
Health Service or the Indian Health Service, “if the prisoner is a Native American and
is entitled to medical care from those agencies or groups”).
       21
              See AS 33.30.028(a)(5) (making certain types of medical care the
                                                                 (continued...)

                                           -24-                                        6899

guidance about their payment and coverage options,”22 but the Alaska Statutes provide
rules of law and are generally not thought of as means for providing non-binding financial
advice to prisoners. And the court asserts that enumeration “provides the DOC with a list
of alternative payers to collect from,”23 but DOC could collect from anyone already liable
for a prisoner’s health care even without enumeration. Under the court’s theory, the
statute’s legal effect would thus not be altered one iota by omitting enumeration, and the
court does not resolve this surplusage problem. Moreover, there is no indication
whatsoever in the legislative history that the legislature had any such non-legal reasons
for enumerating collateral sources.
              In sum, the court’s opinion effectively deletes statutory text by omitting it
from its main conclusion that subsection (a) assigns personal liability for all medical costs
to the prisoner. The court’s conclusion ignores the subject-to clause from the statute as
well as the enumeration of collateral sources. Only by eliminating critical language in the
statutory provision can the court read it to create the unconditional assignment of personal
liability for all medical care that the court finds in AS 33.30.028 today.
              The court’s interpretation is also contradicted by the statute’s purpose. It is
clear from the legislative history of AS 33.30.028 that the legislature intended for this
statute to deter frivolous prisoner medical complaints and the overuse of medical
services.24 It is also clear that this deterrence rationale outweighed any subsidiary goal

       21
            (...continued)

“responsibility” of the “parent or guardian of the prisoner if the prisoner is under the age

of 18”).
        22
               Op. at 10.
        23
               Id.
        24
               Staffer Dennis DeWitt testified to the House Finance Committee that the
                                                                       (continued...)

                                            -25-                                       6899

of recovering costs.25 (Indeed, almost all of the cost-savings discussion in the legislative
history revolved around an entirely different statute that was part of the same bill and
would make certain terminally ill prisoners eligible for special medical parole in order to
remove from the public the burden of paying for their health care costs.)
              That the statute’s primary purpose is to deter overuse of medical resources
supports the plain-text interpretation that subsection (a) assigns personal liability to the
prisoner for all in-house care, but assigns personal liability only for outside care where


       24
              (...continued)
statute is “designed to act as a deterrent to frivolous complaints.” Similarly, DeWitt told
the Senate Judiciary Committee that the statute “allows the Department of Corrections
to establish a billing mechanism for medical services within prisons to help control
medical services, similar to a deductible in a traditional health insurance policy.”
Assistant Attorney General Michael Stark informed the House Finance Committee that
“the legislation will deter frivolous medical complaints” and that the harm the legislation
was designed to prevent stemmed from the fact that “institutionalized populations often
include individuals that manifest medical complaints in which there is no basis in fact.”
Representative Eldon Mulder told the House committee that “[t]he whole thing is to
make certain there is a need for a doctor so they know it costs to see a doctor.” Minutes,
H. Judiciary Comm. Hearing on H.B. 219, 19th Leg., 1st Sess. (Mar. 24, 1995).
        25
              DeWitt testified to the House committee that “the co-payments would be
small” because the statute “is an attempt to allow the Department to get control on
utilization as opposed to securing revenue.” Representative Mulder stated to the
committee that “[t]his is one of those areas where they are trying to do a little bit of cost
prevention” (emphasis added) while DOC Special Assistant Jerry Shriner “stressed that
collection would be difficult and the cost of collecting could exceed the amount
collected.” Representative Con Bunde “stated he wouldn’t look at it to really recapture
much money, and the net result might be by the time the paperwork is done, there is no
money return.” Representative Bunde went on to state that “that’s simply a token
payment so that they’re reminded of their cooperation in their rehabilitation or
whatever. . . . [I]t’s not going to make any money necessarily for the Department of
Corrections. . . . I just want to make sure that we understand we’re not making a fiscal
impact while we do this.” When the bill was passed out of committee, it received “zero
fiscal notes” indicating that it was not expected to impact the budget. Id.

                                           -26-                                        6899

a prisoner has a collateral source enumerated in (a). Prisoners are free to seek in-house
medical services on their own volition, thus making copayment through personal liability
a useful deterrent to frivolous medical complaints. But personal liability for a copayment
for treatment by outside staff would not serve the goal of deterring frivolous overuse of
medical services because prisoners receive outside medical treatment only upon referral
from in-house prison staff.26 Simply put, with DOC medical staff standing as gatekeepers,
there is no frivolous overuse of outside medical resources that would be deterred by
personal liability for copayments.27 Thus, the statute’s purpose is furthered by the text the
legislature used to enact it; the court’s interpretation of that text today does not further the
legislature’s goal.




        26
              DOC’s brief states that the rationale “to provide . . . a disincentive to
making frivolous requests for care . . . does not apply to care received from outside
providers because outside specialist referrals are made only at the direction of the DOC
medical staff.” See also DOC Policy & Procedure 807.02 IV.D.4 (“The Department may
use consultants and specialists as needed to provide health care services to prisoners as
outpatients or through hospitalization. The health care practitioner, in coordination with
the Superintendent, shall initiate referrals for special services and routine consultations
services. The Medical Director must approve all non-emergency referrals.”).
        27
               The court asserts, without any explanation, that the requirement that
prisoners obtain DOC approval before seeking or obtaining outside care will not deter
frivolous overuse of outside medical care; it then concludes that the goal of deterring
frivolous overuse of outside medical care will instead be served by assigning personal
liability for such care when prisoners lack enumerated collateral sources. Op. at 13-14.
But it is unclear how medically necessary outside care, pre-approved by DOC, could
ever be frivolous. The behavior that the court claims must be deterred is simply
nonexistent, by definition. The court’s claim that its “reading of the statute is better
suited to achieving . . . deterrence” of frivolous overuse of outside medical care, is thus
utterly unsupported. Id. at 13.

                                             -27-                                         6899

              Despite this clear legislative history, the court concludes that “the primary
purpose of this statute is to reduce medical costs.”28 The court reaches this conclusion by
quoting dicta from one of our prior cases interpreting AS 33.30.028 in which we held that
the statute applied to former prisoners as well as current prisoners.29 In that case, we
stated: “Although the legislative history does not explicitly address extending liability to
former prisoners, preventing the State from collecting from prisoners to the fullest extent
possible would contravene the statute’s cost-saving purpose.”30 Citing only this very
general statement of legislative intent from a case addressing a distinct issue, today’s
court concludes that including a “prisoner’s personal wealth among those resources
subject to reimbursement is consistent with the statute’s primary purpose of reducing the
DOC’s medical costs.”31
              The court is incorrect in its conclusion that the primary purpose of the statute
is to reduce DOC’s medical costs through cost recovery. The court mistakenly relies on
dicta regarding legislative intent in our prior decision interpreting AS 33.30.028. In that
case, we addressed an issue for which there was no need to go beyond a conclusion that
the purpose of the statute, stated at the highest level of generality, was cost savings. But
reducing frivolous use of DOC medical services is a measure that saves costs. We had
no reason to detail these more specific cost-saving goals, such as deterring over-use of in­
house medical services, because examining legislative purpose at a high level of
generality sufficed to answer the question presented. Accordingly, we did not purport to


         28
              Id. at 12.
         29
              State, Dep’t of Corr. v. Hendricks-Pearce, 254 P.3d 1088, 1092-93 (Alaska
2011).
         30
              Id. at 1093.
         31
              Op. at 12.

                                            -28­                                        6899
give the final word on the purpose of AS 33.30.028. By contrast, this case raises the
question of the more specific purpose of the statute; one proffered purpose — raising
revenue — favors one interpretation while another proffered purpose — deterrence of
frivolous use of medical services — favors a different interpretation. As discussed above,
the legislative history clearly indicates that deterrence of frivolous overuse was the
primary purpose of AS 33.30.028.
              The court today deletes from the statute the subject-to clause and the
enumeration of collateral sources in subsection (a), and then reaches its conclusion by
relying on an abstract statement of legislative purpose unsupported by the legislative
history or the legislative text. Properly used, legislative intent can clarify statutory text,
but the intent must be discerned carefully and should never supplant the plain meaning
of unambiguous text.
              The court relies on a single statement in the legislative history to support its
conclusion that the legislature intended for AS 33.30.028(a) to establish personal liability
for outside medical care. Its reliance is misplaced. The court quotes a staffer testifying
in the House Finance Committee that the legislation was intended to reach “individuals
. . . that will have other coverage or resources,” including “the resources of someone that
is independently wealthy.”32 The court concludes from these pieces of evidence that “the
committee intended that a prisoner’s personal wealth be included within the coverage of
this statute.”33 The legislative history certainly does suggest that the legislature sought
to make prisoners personally liable for at least some expenses. For that matter, so does
the legislative text of subsection (a). Thus, appeals to legislative history on this point are
unnecessary. But this general statement of intent is simply irrelevant in this case. My


        32
               Id. at 12-13 (emphasis and omission from opinion).
        33
               Id. at 13.

                                            -29­                                        6899
interpretation of AS 33.30.028 would assign personal liability for at least some medical
costs. The more specific question before the court today is whether AS 33.30.028 assigns
personal liability in only those cases where a prisoner received in-house care and where
the prisoner received outside care and also has enumerated collateral resources, or
whether the statute also assigns personal liability in those cases where the prisoner
received outside care and lacks enumerated collateral resources. In the end, the court
points to absolutely no support for its reconstruction of the abstract purpose animating
this statute, nor does it respond to or refute the voluminous contrary legislative history.
              The court’s interpretation is also inconsistent with the longstanding
interpretation of the statute by DOC’s own regulations. In 22 Alaska Administrative
Code (AAC) 05.121, DOC implemented the authority granted by the legislature in
AS 33.30.028. The regulations specify in subsection (b)(1) that “a prisoner is financially
responsible for a co-payment for health care services provided to the prisoner by the
department through department employees or designated contractors”34 while
subsection (b)(2) specifies that “a prisoner shall arrange for the department to obtain
payment or coverage from one or more of the responsible parties set out in
AS 33.30.028(a), if the prisoner receives health care services not provided through
department employees or designated contractors.”35
              These regulations interpret AS 33.30.028 in accord with my interpretation
of the statute and contrary to the court’s conclusion today. Subsection (b)(1) makes the
prisoner personally “financially responsible” for costs incurred in-house, while
subsection (b)(2) conspicuously omits any declaration of personal financial responsibility
for outside medical care and instead directs the prisoner to “arrange for . . . payment . . .


       34
               22 AAC 05.121(b)(1).
       35
               22 AAC 05.121(b)(2).

                                            -30-                                       6899
from one or more of the responsible parties set out in AS 33.30.028(a).” The most natural
reading of this language is that the prisoner is not personally financially responsible for
outside medical care when he lacks enumerated collateral sources. The court concludes
that “the regulation does not conflict with [its] reading of the statute,”36 which assumes
that a prisoner is ultimately liable for the entire cost of all medical services received by
the prisoner.     But the court never addresses the conspicuous lack of assignment of
personal financial responsibility in subsection (b)(2) of the regulation or the indirect
phrasing of “arrange for.” If the fact that a prisoner is potentially a “responsible party set
out in AS 33.30.028” made the prisoner personally responsible for payment for outside
care even without collateral sources, it would be an odd turn of phrase indeed to assign
personal liability to a prisoner by directing the prisoner to “arrange for . . . payment” from
himself, particularly when DOC in the immediately prior subsection of the regulation has
already demonstrated that it knows how to assign personal liability directly.
                In my view, the language and legislative history of AS 33.30.028 are
sufficiently clear that I would hold for Hendricks-Pearce on their strength alone. But even
if the statute’s meaning were ambiguous in this case, DOC’s longstanding interpretation




        36
                Op. at 11.

                                            -31-                                        6899
of AS 33.30.028 should resolve any lingering ambiguity.37 (That DOC has adopted a
contrary interpretation of the statute during this litigation is of no moment.38)
              The court dismisses the import of DOC’s interpretation by invoking two
mutually contradictory reasons. First, the court indicates that the “plain” text and “natural
reading”suffice to reach its preferred interpretation, implying that there is no lingering
ambiguity in the statutory text for the regulations to resolve. As I discuss above, the best
reading of the statute’s text and purpose clearly favors my interpretation, but, at the very
least, the statute is ambiguous, and the court must address DOC’s contrary interpretation.
Second, without acknowledging the contradiction with the first reason, the court states
that the statute is “silen[t]” on the assignment of personal liability for the cost of outside
medical care where a prisoner lacks enumerated collateral resources.39 The court then
concludes that DOC’s interpretation of the statute “properly goes no further” than the
statute and “says nothing of divesting the prisoner lacking collateral resources of liability


        37
               See Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 1082
(Alaska 2011) (defining the “reasonable basis standard . . . under which we give
deference to the agency’s interpretation so long as it is reasonable, when the
interpretation at issue implicates agency expertise or the determination of fundamental
policies within the scope of the agency’s statutory functions”); State, Alaska Bd. of
Fisheries v. Grunert, 139 P.3d 1226, 1232 (Alaska 2006) (stating that “we consider
whether the regulation is reasonable and not arbitrary. Where highly specialized agency
expertise is involved, we will not substitute our own judgment for the board’s. Our role
is to ensure only that the agency has taken a hard look at the salient problems.”).
              How and when to bill prisoners for medical expenses in order to deter
frivolous overuse of medical services is clearly a question subject to DOC’s agency
expertise as established in its regulations.
        38
             See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988)
(“Deference to what appears to be nothing more than an agency’s convenient litigating
position would be entirely inappropriate.”).
        39
               Op. at 11.

                                            -32-                                        6899

for outside services.”40 Not only is this argument as to statutory silence contradicted by
the court’s own argument about the plain meaning of the statutory text, it also contradicts
itself: why would an interpretive regulation have to divest a prisoner of liability that is
never assigned by the statute?
              Finally, the court’s interpretation of the statute creates a damaging policy
that will undermine the State’s fiscal and public safety interest in reducing recidivism and
supporting prisoners’ successful reentry into the community after release. When deciding
questions of law, such as interpreting the meaning of a statute, we have repeatedly stated
that “[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent,
reason, and policy.”41 I would interpret AS 33.30.028 based on text, purpose, and
administrative interpretation so that the statute enacts a reasonable policy: Prisoners will
be deterred from frivolous over-consumption of medical services — both in-house and
rendered outside the DOC system — while DOC will be able to recover costs when a
prisoner has access to an enumerated source of coverage or benefits.
              As the court interprets AS 33.30.028 today, the statute would inflict
significant harms to the State’s interests and to the individual liberty of former prisoners
who have completed their sentences. When a prisoner receives substantial medical care
that is uncompensated by collateral sources, DOC will be in the position of
superintending the person’s ability to save any money at all, starting while the person is
in prison and extending indefinitely after release. If a former prisoner is lucky enough to
reintegrate successfully and obtain a modicum of savings to secure a stable life, DOC will
be able to seek reimbursement under AS 33.30.028 years after release. In effect, DOC



       40
              Id.
       41
              Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979); see, e.g., Heller v.
State, Dep’t of Revenue, 314 P.3d 69, 72-73 (Alaska 2013).

                                           -33-                                       6899
will have the power to prevent any former prisoner who received unreimbursed care from
achieving more than a subsistence existence until the unreimbursed cost of care is paid
back. The logic of this claimed power would also seem to permit the State to withhold
virtually any form of government assistance, including Permanent Fund Dividend
payments, government salary disbursements, unemployment benefits, payments provided
under contract, and welfare payments. It would also seem to permit the State to seek
repayment by forcing former prisoners to liquidate their meager assets or borrow against
future earnings from licenses or other non-tangible assets or unrealized gains.
              I would conclude that the statute’s text, purpose, and administrative
interpretation foreclose this result. The statutory text and legislative history make clear
that the legislators thought they were passing a bill with only minimal charges for
prisoners that would have the deterrent effect of a copayment for a subset of medical
services.42
              The court’s policy choice will harm the State’s interests in reducing ex-
offender recidivism, protecting public safety, and safeguarding the public fisc. Personal
financial resources are a crucial determinant of successful prison reentry and recidivism
prevention.43 Reducing recidivism protects public safety by preventing future crime, and


        42
              The legislative history is discussed more fully above. See supra notes 24­
25. But the legislators’ view that this bill would have only a limited reach bears
reiterating here. The bill’s sponsor, Representative Mulder, described the statute to the
House Finance Committee as “adding a small cha[r]ge to inmates for medical care, as a
way for Corrections to let inmates know that there is a cost for prescription drugs and
medical relief.” Assistant Attorney General Stark “emphasized that the provision is not
intended as part of the punishment imposed on an inmate” but rather “that the legislation
will deter frivolous medical complaints.” Minutes, H. Judiciary Comm. Hearing on
H.B. 219, 19th Leg., 1st Sess. (Mar. 24, 1995).
        43
              See generally A LASKA PRISONER REENTRY TASK FORCE , FIVE -Y EAR
                                                               (continued...)

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it also reduces State spending on investigation, prosecution, defense, and punishment
stemming from the commission of future crimes.44 It was thus reasonable for the
legislature to adopt statutory text with the effect of limiting personal liability for outside
healthcare expenditures. The court’s reconstruction of AS 33.30.028 institutes a new
policy, one that harms these important State goals.
              For these reasons, I would hold that AS 33.30.028 does not impose personal
liability on prisoners for the cost of health care rendered by professionals outside of the
DOC system where the person lacks a collateral source enumerated in AS 33.30.028(a).
I would reverse the superior court and remand. I therefore respectfully dissent and do not
join the plurality opinion.




       43
             (...continued)
PRISONER REENTRY STRATEGIC PLAN , 2011-2016, at 26 (2011), available at
http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reent
ry%20Plan.pdf (identifying “[l]ow levels of . . . vocational and financial achievement”
as “criminogenic needs” leading to recidivism and reincarceration); id. at 65 (“[O]ne of
the greatest contributing factors to recidivism was indigence . . . .”).
              The State understands the importance of successful prisoner reentry and the
crucial role of personal income in reentry policy. Accordingly, DOC encourages all
persons leaving prison to create “reentry plans” that include steps for earning income and
accumulating personal savings. A LASKA D EPARTMENT OF CORRECTIONS , REENTRY
M ANUAL 24-25, 32-33 (2012), available at http://www.correct.state.ak.us/TskForce/
documents/Re%20Entry%20All%20edited%20pg%2040.pdf.
        44
               See generally A LASKA STRATEGIC PLAN , supra note 43, at 4-5, 21-22.

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