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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Loren J. Larson Jr. v. State of Alaska, Department of Corrections, Board of Parole (11/20/2020) sp-7492
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
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LOREN J. LARSON JR., )
) Supreme Court No. S-17529
Appellant, )
) Superior Court No. 3PA-18-02207 CI
v. )
)
O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF CORRECTIONS, BOARD OF ) No. 7492 - November 20, 2020
PAROLE, )
)
Appellee. )
)
Appeal f
rom the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Loren J. Larson, Jr., pro se, Wasilla,
Appellant. John H. Haley, Assistant Attorney General,
Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
A convicted murderer serving a lengthy prison sentence asserted that he
wanted to apply for clemency from the governor on the grounds that he is innocent and
was wrongfully convicted. But the applicant did not want to execute two required
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information release forms that were part of the clemency application. He was advised
by the Board of Parole that under the current administrative framework an incomplete
application would be returned to him and not forwarded to the governor. The applicant
brought suit against the Board, arguing that its refusal to forward his application without
the release forms violated his due process right to submit a clemency application. He
further argued that enforcing the information release requirement would violate the
unconstitutional conditions doctrine, which in some contexts bars the government from
conditioning a benefit on the waiver of a constitutional right. The superior court granted
summary judgment to the Board, rejecting the applicant's constitutional arguments. He
appeals. Because the Board did not violate the applicant's constitutional rights, we
affirm the superior court's dismissal of the lawsuit.
II. CONSTITUTIONAL,STATUTORY,ANDADMINISTRATIVECONTEXT
A. Constitutional Context
1. Constitutional history
The Alaska Constitution gives the governor broad discretionary authority
to grant or deny executive clemency: "Subject to procedure prescribed by law, the
governor may grant pardons, commutations, and reprieves, and may suspend and remit
1 The Constitutional Convention record reflects the delegates'
fines and forfeitures."
intention to give the governor this broad clemency power while also giving the
legislature power to create transparency-enhancing procedures. And we have been
1 Alaska Const. art. III, § 21; Lewis v. State, Dep't of Corr. , 139 P.3d 1266,
1272 (Alaska 2006) ("The Alaska Constitution gives the governor broad authority to
grant executive clemency.").
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directed to no historical information suggesting the voters had a different intent when the
Alaska Constitution was approved. 2
During the Constitutional Convention, standing committees submitted
3 Delegate Victor C.
proposed constitutional articles for the delegates' consideration.
Rivers discussed the Committee on the Executive Branch's report about the executive
clemency provision:
We also handled the matter of granting reprieves,
commutations, and remittance of fines and forfeitures. That
is a broad clause and was adopted after much discussion in
Committee. We felt that the governor would possibly be very
desirous of having a pardons and parole board to sit with him
and make decisions along with him in the matter of pardons,
reprieves, remittances, etc., so the section has also provided
for the establishment of such a commission or body to whom
he may delegate certain of his powers in arriving at his
[ ]
pardoning decisions. 4
Delegate Rivers later explained that during a committee meeting there had
been discussion, but not adoption, of an amendment placing "certain limitations on the
2 SeegenerallyWielechowskiv.State ,403P.3d 1141, 1146-47(Alaska2017)
(reviewing framework for constitutional provision interpretation, including looking to
historical context, plain meaning, purpose, and framers' intent, as well as meaning voters
probably placed on provision).
3 VICTOR FISCHER, A LASKA 'S CONSTITUTIONAL CONVENTION 36, 46-47,
56-59 (1975).
4 3 Proceedings of the Alaska Constitutional Convention (PACC) 1987
(Jan. 13, 1956). An early version of the executive clemency provision provided, in
relevant part: "The governor may grant pardons, commutations, and reprieves and may
suspend and remit fines and forfeitures. . . . A commission or other body may be
established by law to aid and advise the governor in the exercise of executive clemency."
Constitutional Convention Committee Proposal No. 10/a, § 13, Report of the Committee
on the Executive Branch (Jan. 12, 1956).
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5
pardon powers so there would be no chance of abuse." Delegate Victor Fischer later
questioned whether it was necessary to include from the early version of the provision
a sentence stating: "A commission or other body may be established by law to aid and
6 Delegate Rivers explained
advise the governor in the exercise of executive clemency."
that committee members differed in opinion: "Some hold that the final responsibility for
all of the pardon power should lie directly in the governor. Others believe it should be
spread out in an advisory body that would temper his decisions and perhaps control any
abuse of the pardoning power."7 Delegate Rivers advocated keeping the sentence to
"giv[e] the legislature the specific authority, notwithstanding the grant of the pardons
power to the governor, to set up a board or commission to handle these applications and
assist and aid the governor in making his decisions."8
The executive clemency provision was discussed again the next day, and
at that time the sentence read: "The governor may grant pardons, commutations, and
9 Delegate John M. Cross suggested adding "subject to procedure
reprieves . . . ."
prescribed by law":
As you will note under this section, the pardon power is the
only one in this section that is not, by procedure, prescribed
by law. This does not limit the governor's power. It simply
gives the legislature power to prescribe a procedure that will
5 3 PACC 2014 (Jan. 13, 1956).
6 Id. at 2028.
7 Id.
8 Id. at 2029.
9 Constitutional Convention Committee Proposal No. 10/a, § 13, Report of
the Committee on the Executive Branch (Jan. 12, 1956).
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be followed in exercising this power. It is largely a matter of
protecting an honest governor from pressure. [10]
Delegate Maurice T. Johnson disagreed, arguing that granting a pardon "is
an individual right and it is solely for [the governor] to determine."11 Delegate Douglas
Graysimilarly protested, explaining that prescribing procedures by law"mayremovethe
individual's final chance of last resort in the case it is erroneous."12 When asked to
explain, Delegate Cross noted that he initially used "language which would limit the
governor's power," but decided against doing so.13 He expressed concern that "[a] great
many pardons were made on the quiet," and he asserted that "the public is entitled to
know just what happened" if the governor grants clemency.14 Delegate Cross believed
the secretive clemency decision problem "could be easily corrected if a procedure had
been set up" placing the governor in the "limelight."15
Delegate Ralph J. Rivers agreed, noting that "without actually cutting into
[the governor's] basic pardon power," he favored "open proceedings instead of an
under-the-table deal . . . without the public knowing anything about it."16 He provided
an example of an open procedure, requiring filing an application with the governor or an
10 3 PACC 2190 (Jan. 14, 1956).
11 Id.
12
Id.
13 Id. at 2191.
14 Id.
15 Id.
16 Id.
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17
advisory board. Following this discussion, Delegate Cross's amendment was
18
adopted.
Delegate Fischer then successfully moved to strike the sentence about the
19 He explained: "[T]his matter is
legislature's authority to establish an advisory board.
taken care of under the amendment that we have just adopted. The legislature will have
the authority to establish an advisory board."20
As a result of the voters' subsequent adoption and statehood's later
effectuation of the Alaska Constitution,21 article III, § 21 stands as the constitutional
underpinning for broad but transparent discretionary executive clemency.
B. Statutory Context
In 1961 the legislature codified clemency statutes in AS 33.20.070-.080.22
23
Alaska Statute 33.20.070 essentially restates the constitutional clemency provision.
24 has been
Alaska Statute 33.20.080, setting out the governor's clemency procedure,
17 Id.
18 Id. at 2192.
19 Id. at 2192-93.
20 Id. at 2192.
21 See Act of July 7, 1958, Pub. L. No. 85-508, § 1, 72 Stat. 339, 339
(providing for State of Alaska's admission into Union).
22 Ch. 16, §§ 1-2, SLA 1961.
23 Compare Alaska Const. art. III, § 21, with AS 33.20.070; see also Lewis
v. State, Dep't of Corr., 139 P.3d 1266, 1272 (Alaska 2006) ("Alaska Statute 33.20.070
restates the constitutional provision.").
24 The original statute provided that the governor "may refer applications for
executive clemency to the Board of Parole" and that the Board "shall thereupon
investigate each such case and shall submit to the [g]overnor a report of the investigation,
(continued...)
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amended three times to prescribe additional procedures. The statute was amended in
25
1989 as part of the Alaska Crime Victim's Rights Act
and again in 1996 as part of the
26 And a 2007 amendment27
Domestic Violence Prevention and Victim Protection Act.
"sought to prohibit governors from granting clemency without first referring the
clemency application to the Board of Parole for investigation, and providing notice to
28
victims of the offender."
The current clemency framework is found in AS 33.20.080(a) and (b):
(a) The governor may not grant executive clemency to a
person unless the governor has first provided notice of
consideration of executive clemency to the board of parole
for investigation and at least 120 days have elapsed since the
notice required under (b) of this section has been provided.
The board shall investigate each case and, not later than 120
24 (...continued)
together with all other information the Board may have regarding the applicant." Ch. 16,
§ 2, SLA 1961 (emphasis added).
25 Ch. 59, §§ 18, 19 SLA 1989 (authorizing certain crime victims to request
notification from Board of clemency applications and to provide written comments).
26 Ch. 64, §§ 56, 57 SLA 1996 (authorizing domestic violence crime victims
to request notification from Board of clemency applications and to provide written
comments).
27 Ch.1,§§ 1-3, SLA 2007 (requiring governor to provide notice of clemency
consideration to Board for its investigation; requiring Board to send notice of governor's
consideration to Department of Law, Office of Victims' Rights, and certain victims; and
requiring Board to submit report to governor within 120 days of receipt of notice of
governor's clemency consideration).
28 Ronald S. Everett & Deborah Periman, "The Governor's Court of Last
Resort:" An Introduction to Executive Clemency in Alaska, 28 ALASKA L. R EV. 57,
89-91 (2011) (explaining that amendment followed public outrage over controversial
pardon granted without input from Board or notice to deceased victim's family).
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days after receipt of the notice of consideration, submit to the
governor a report of the investigation, together with all other
information the board has regarding the person. When the
report is submitted, the board shall also transmit to the
governor the comments it has received under (b) of this
section.
(b) The board shall send notice of the governor's
consideration of executive clemency to the Department of
Law, the office of victims' rights, and the victim of a crime
against a person, a crime involving domestic violence, or
arson in the first degree within five business days after receipt
of notice of consideration from the governor. The victim
may comment in writing to the board on the consideration for
executive clemency. The board shall provide notice of any
action taken by the governor to the Department of Law, the
office of victims' rights, and the victim.
C. Current Administrative Context
In January 2018 then-Governor Bill Walker implemented an updated
clemency application process. This process, with minor changes implemented by
Governor Michael Dunleavy, is divided into four phases.
First is the initial application phase, the phase relevant to this appeal.
Applications are directed to the Board, an administrative board within the Alaska
29 The Board reviews each application for completeness. An
Department of Corrections.
incomplete application is returned to the applicant; a complete application is forwarded
to the governor, who then can either deny clemency or refer the application for
investigation. Particularly relevant to this appeal, the clemency application packet
includes two required information release forms, a general information release form and
a medical information release form.
29
See AS 33.16.020 (establishing Board of Parole within Department of
Corrections and setting out structure of membership and terms of service).
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Second is the investigation phase. If and when the governor provides
statutorily required notice that clemency is being considered, the Board has 120 days to
fulfill its notice and investigative duties under AS 33.20.080(a)-(b). In the third phase
an advisory committee considers the application and the Board's investigative report and
submits its own report to the governor with written findings and a clemency
recommendation. In the fourth phase, the governor checks for conflicts of interest and
makes a final clemency decision.
III. FACTS AND PROCEEDINGS IN THIS MATTER
A. Loren J. Larson, Jr. And His Lawsuit
Loren J. Larson, Jr. was convicted in 1998 of two counts of first-degree
murder and one count of first-degree burglary, and he was sentenced to two consecutive
99-year terms for the murder counts and a 10-year concurrent term for the burglary
30 In 2003 the court of
count; the court of appeals affirmed Larson's conviction in 2000.
appeals affirmed the superior court's subsequent dismissal of Larson's post-conviction
relief claim.31 Larson maintains his innocence and has unsuccessfully challenged the
convictions in numerous other proceedings.32
30 Larson v. State , No. A-07032, 2000 WL 19199, at *1-2 (Alaska App.
Jan. 12, 2000); Larson v. State , No. A-11281, 2013 WL 4012639, at *1 (Alaska App.
June 26, 2013) (listing date of conviction).
31 Larson v. State, 79 P.3d 650, 652-53 (Alaska App. 2003) (affirming
dismissal of petition alleging, based on juror affidavits, wrongful conviction due to jury
misconduct and bias).
32 See, e.g., Larson v. Turnbull, 270 F. App'x 665, 666 (9th Cir. 2008)
(affirming federal district court's dismissal of habeas corpus petition as untimely);
Larson v. State, 254 P.3d 1073 (Alaska 2011) (affirming superior court's dismissal of
civil complaint on grounds of judicial immunity and res judicata); Larson v. State, No.
A-11281, 2013 WL 4012639, at *1 (Alaska App. June 26, 2013) (affirming superior
(continued...)
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In May 2018 Larson sent the Board a letter asking whether his clemency
application would be processed if he submitted it without the required information
release forms. He asserted his innocence and the right to submit an initial clemency
application without forfeiting his right to keep confidential information private. The
Board responded that without the signed release forms an application would be
considered incomplete and would not be processed.
Larson did not apply for clemency. Instead, in August 2018 Larson filed
a superior court complaint, alleging that the Board was violating his due process rights
by "preventing the application from reaching the [g]overnor[]." Larson requested
declaratory judgment that refusal to forward to the governor a clemency application
without the signed release forms constituted a due process violation and an injunction
requiring that the Board accept and forward his application to the governor without the
forms.
32 (...continued)
court's dismissal of untimely motion for new trial); Larson v. State, No. A-10981, 2013
WL 6169314, at *1 (Alaska App. Nov. 20, 2013) (denying plain error claim and
affirming superior court's dismissal ofmotion for relieffromcriminaljudgment); Larson
v. Schmidt, No. A-11312, 2013 WL 6576742, at *4 (Alaska App. Dec. 11, 2013)
(vacating habeas corpus petition's dismissal to allow superior court consideration as
post-conviction relief petition); Larson v. State, No. A-11835, 2016 WL 191987, at *1
(Alaska App. Jan. 13, 2016) (affirming superior court's dismissal of post-conviction
relief petition); Larson v. State, 407 P.3d 520 (Alaska App. 2017) (concluding that
petitioner was entitled to seek rehearing of court's order on merits denying his original
application for relief); Larson v. Schmidt, No. A-12476, 2018 WL 3572449, at *1-2
(Alaska App. July 25, 2018) (denying petitioner's arguments regarding inapplicability
of res judicata); Larson v. State, No. A-12876, 2018 WL 6200315, at *1-2 (Alaska App.
Nov. 28, 2018) (affirming superior court's denial of motion to renew earlier motion for
new trial).
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B. Summary Judgment Proceedings
In March 2019 Larson sought summary judgment, arguing that the Board's
refusal to forward a clemency application without the release forms violated his due
33
process rights. Citing Lewis v. State, Department of Corrections , Larson contended
that he must be given a fair opportunity to demonstrate that clemency is warranted.
Larson maintained that he is innocent and was wrongfully convicted because of juror
bias and that he satisfied a clemency ground. Larson argued that the Board's
requirement that he submit signed release forms with his application works to "suppress"
his constitutional rights, including his rights to privacy, freedom of speech, and to
petition the government for redress of grievance. Larson later clarified in his reply
memorandum that the Board's requirement for information releases at the initial
clemency application phase violates the unconstitutional conditions doctrine by
34
interfering with his constitutional privacy right.
The Board filed a cross-motion for summary judgment, asserting that:
(1) the governor has broad authority to create a clemency application and to delegate to
33 139P.3d1266(Alaska2006) (concerning clemencyapplicant'sdueprocess
right to not be unreasonably prevented by state from submitting clemency application to
present facts supporting clemency ground).
34 "The unconstitutional condition doctrine is the principle that the
government cannot condition a benefit on the requirement that a person forgo a
constitutional right. The corollary is that the 'government may not deny a benefit to a
person because he exercises a constitutional right.' " Erwin Chemerinsky,
CONSTITUTIONAL LAW : P RINCIPLES AND POLICIES 1009 (4th ed. 2011) (citing Regan v.
Taxation with Representation of Washington , 461 U.S. 540, 545 (1983); see also Perry
v. Sindermann, 408 U.S. 593, 597 (1972) ("[E]ven though a person has no 'right' to a
valuable governmental benefit and even though the government may deny him the
benefit for any number of reasons, there are some reasons upon which the government
may not rely. It may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests . . . .").
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the Board the task of "screening out incomplete applications"; (2) Larson's requested
injunction would violate the separation of powers doctrine; and (3) requiring signed
information release forms did not violate Larson's due process rights. The Board
maintained that it had not prevented Larson from accessing the clemency application
process and that it had not acted arbitrarily by requiring the signed release forms. The
Board further argued that Lewis stemmed from other jurisdictions' death penalty cases
and that due process should apply to clemency only if an inmate faces execution.
The superior court granted the Board summary judgment. The court
determined that the "Board has properly been delegated the power to screen out
incomplete applications by giving them back to the applicant instead of forwarding them
to the [g]overnor." The court explained that the "Board telling Larson that his
application will not be forwarded to the [g]overnor without the [information releases]"
was not a due process violation. The court stated it was unnecessary to determine
"whether the limited liberty interest recognized in Lewis" is solely applicable to death
penalty cases because requiring information release forms was "not the same as
interfering with Larson's access to the application process." The court concluded there
was no improper government interference, emphasizing that the information releases are
not an arbitrary requirement and that Larson controls whether he can submit a completed
application by including the required waivers.
Larson sought reconsideration, arguing that, contrary to the court's ruling,
his primary claim was that under Lewis he was not being afforded the opportunity to
present the facts supporting his clemency ground. Larson reiterated his framing of the
issue: that the Board was preventing him from making an initial showing of a potential
clemency ground by requiring him to forfeit his constitutional privacy right in return for
allowing him to exercise his free speech right to petition for clemency. The court denied
reconsideration, explaining that it had not misconstrued Larson's argument "that he
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would like to make an initial factual showing of grounds for clemency, but refuses to
comply with the [information release] requirement (based on privacy grounds that this
[c]ourt found to be meritless)." The court emphasized that requiring the information
releases was not arbitrary and that the requirement was not the same as interfering with
Larson's access to the application process.
C. Appeal
Larson appeals, arguing that under the Alaska Constitution's due process
clause35 he must be afforded a "fair opportunity" at the initial application phase to make
a factual showing that a clemency ground has been satisfied without being required to
submit the signed information release forms with his clemency application. He also
contends that requiring forfeiture of his privacy right at the initial application phase
violates the unconstitutional conditions doctrine.
IV. STANDARD OF REVIEW
We exercise de novo review and our independent judgment in this matter
because we are reviewing the superior court's grant of summary judgment based on
rulings of law on constitutional issues.36
V. DISCUSSION
A. Larson's Due Process Argument
37
Larson contends that under Lewis he "has an unfettered procedural due
process opportunity to make a factual showing that a ground for clemency has been
35 Alaska Const. art. I, § 7 ("No person shall be deprived of life, liberty, or
property, without due process of law. The right of all persons to fair and just treatment
in the course of legislative and executive investigations shall not be infringed.").
36 Lewis, 139 P.3d at 1268-69.
37 Id. at 1266.
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satisfied" and that the Board must afford him a "fair opportunity" to do so without
requiring information releases at the initial application phase. He contends the Board
may require information release forms only after the clemency process moves beyond
the initial application phase and the governor requests further investigation under phase
two of the administrative process.
The Board contends that Lewis does not support Larson's position because
the current clemency framework no longer has specified grounds for clemency and,
unlike the Lewis applicant's allegations, the Board has not prevented Larson from
38 The Board
gathering and presenting evidence supporting his clemency application.
argues that clemency is a discretionary executive act and a grant of mercy rather than a
right. The Board further contends that the clemency application process is not arbitrary
and that the Board did not violate Larson's asserted due process rights.
In Lewis we considered a due process violation alleged in the then-existing
39 The clemency applicant had been convicted of
clemency application process.
40 In 2002 she submitted
second-degree murder and was ineligible for parole until 2011.
a clemency application, in part for alleged health reasons, but the Board informed her
that "it [would] not consider an application for executive clemency before an applicant
38 The Board also contends that because Larson is not a capital inmate, he
cannot establish a cognizable liberty interest giving rise to a due process violation. But
Larson repeatedly cited Lewis - a non-capital case ruling that "some due process
protections apply to clemency proceedings" - as supporting his due process claim, and
the Board does not on appeal seek to overturn Lewis 's determination that clemency
applicants must be afforded some limited amount of procedural due process. Id. at 1269.
We therefore follow Lewis 's determination that some limited due process protects a
person's interest in applying for executive clemency.
39 Id. at 1267, 1269.
40 Id. at 1267.
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is eligible for parole except upon a 'substantial showing of innocence' or other
41
'exceptional circumstance arising since trial.' "
When she began preparing another
clemency application in 2003, her attorney requested that she be examined by a doctor
42 The Department denied the request because it saw nothing extraordinary
of her choice.
about her medical condition warranting a deviation from its standard practice of denying
requests for non-Department medical examinations.43 The applicant filed a prison
grievance, which the Department also denied.44
The applicant then sued the Department, challenging the grievance
procedure and asserting a due process right to gather evidence for her clemency
application.45 The superior court granted the Department summary judgment.46 The
applicant appealed, asserting a due process right to gather evidence to support her
47
clemency application.
Citing federal precedent from the U.S. Supreme Court and the Eighth and
Eleventh Circuit Courts of Appeal, we concluded that "[b]ecause the state allows
prisoners to apply for executive clemency, it must provide applicants with some
41 Id.
42 Id.
43 Id. at 1267-68.
44 Id. at 1268.
45 Id.
46 Id.
47 Id.
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48
procedural due process during the clemency process." We explained that "[i]f a
prisoner relies on a particular basis recognized by the state as a potential ground for
clemency, the prisoner must have a fair opportunity to make a factual showing that the
49 We applied the three-factor balancing test outlined in
ground has been satisfied."
Mathews v. Eldridge50 to determine if the clemency applicant had a fair opportunity to
demonstratethat her medical conditionsatisfied theBoard's clemencyeligibility criteria:
First, the private interest that will be affected by the official
action; second, the risk of erroneous deprivation of such
interest through the procedures used, and the [probable]
value, if any, of additional or substitute procedural
safeguards; and finally, the[g]overnment'sinterest,including
the function involved and the fiscal and administrative
48 Id. at 1269-70 & n.6 (first citing Ohio Adult Parole Auth. v. Woodard , 523
U.S. 272, 289 (1998) (O'Connor, J., concurring)); then citing INS v. St. Cyr , 533 U.S.
289, 345 (2001) (Scalia, J., dissenting) ("The furthest our cases have gone in imposing
due process requirements upon analogous exercises of Executive discretion is . . . .
requir[ing] ' minimal procedural safeguards' for death-penalty clemency proceedings, to
prevent them from becoming so capricious as to involve 'a state official flipp[ing] a coin
to determine whether to grant clemency.' " (quoting Woodard, 523 U.S. at 289
(emphasis and second alteration in original))); then citing Noel v. Norris , 336 F.3d 648,
649 (8th Cir. 2003) (holding inmate's due process rights not violated when he was not
allowed to undergo special brain scan but was able to present 400-page record including
evidence of brain damage supporting his clemency application); then citing Gilreath v.
State Bd. of Pardons & Paroles , 273 F.3d 932, 934 (11th Cir. 2001) (holding in
clemency context absence of one member of clemency board from oral hearing and mere
appearance of impropriety did not violate due process); and then citing Young v. Hayes ,
218 F.3d 850, 853 (8th Cir. 2000) (holding state official violated due process by
intentionally trying to sabotage inmate's clemency application)).
49 Lewis, 139 P.3d at 1270.
50 424 U.S. 319, 335 (1976).
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burdens that the additional or substitute procedural
requirement would entail. [51]
Concerning the first and third factors, we recognized both the applicant's
"significant interest in being able to generate information needed to support her
clemency application" and the Department's interest "in structuring prisoners' access to
medical attention."52 Concerning the second factor, we assumed the Department's
decision to deny access to a doctor of her choice might deny her access to potentially
important relief,53 but ultimately we concluded there was no due process violation
because she "failed to point to any plausible indications that she had a medical condition
that, if confirmed by a physician, might entitle her to clemency."54
Our Lewis decision established some limited procedural due process
protections for an executive clemency applicant. We do not agree with the Board that
Lewis is inapplicable merely because there no longer are specified clemency grounds.
Alaska law allows clemency applications, and under Lewis an applicant still may not be
unreasonably prevented from accessing the clemency process. But we agree with the
Board that Larson has no viable due process claim under Lewis .
We first reject Larson's unsupportable contention that, because he
maintains his innocence and wrongful conviction, he should be entitled to greater due
process protection at the initial clemency application phase than someone who was
51 Lewis, 139 P.3d at 1270 (quoting State, Dep't of Health & Soc. Servs. v.
Valley Hosp. Ass'n, 116 P.3d 580, 583 (Alaska 2005) (explaining that Alaska adopted
balancing test from Mathews to determine whether administrative proceedings satisfy
due process)).
52 Id.
53 Id.
54 Id. at 1270-72.
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"fairly convicted." Larson presently stands convicted of his crimes and stands in the
same shoes as any other convicted person seeking clemency from the governor.
Assuming next that Larson has a valid privacy interest that would be
affected by the requirement to submit information releases at the initial phase of the
55 we see no risk of erroneous deprivation of this interest.
clemency application process,
Larson is not contending that requiring information releases in the clemency process is
itself a due process violation. He acknowledges that information releases, "conditional
or unconditional, can legitimately be demanded if the [g]overnor requests further
investigation" of an application. He asserts only that requiring the information releases
at the initial application phase is a due process violation. Larson has failed, however, to
show how changing the timing of submitting the information releases risks erroneously
depriving him of his privacy interests. And he has not explained how submitting the
information releases only at the next application phase would protect his privacy interest
any more than if he submitted them at the initial phase.
The Board, on the other hand, articulates sound reasons for requiring the
information release forms as part of the initial application package. For example, the
Board asserts that it is necessary to have the information release forms in place when the
55 We are not persuaded by Larson's argument that requiring information
releases at the initial phase of the application process is a per se violation of his right to
privacy. "The right to privacy is not absolute" but is balanced against conflicting rights
and interests. Jones v. Jennings , 788 P.2d 732, 738 (Alaska 1990). The clemency
application is highly personal, questioning, among other things, an applicant's criminal,
medical, employment, educational, and financial history; applicants further are
encouraged to include personal information, such as "proof of exemplary behavior,
distinct achievement, ability to act as a responsible and contributing member of society,
and . . . evidence of a productive, law-abiding life." It seems unreasonable for a
clemencyapplicant toexpectacompleteand unfettered rightto withholdany information
release form when information releases allow the Board to confirm the highly personal
application's veracity.
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governor asks for further investigation because there is a statutory 120-day time limit for
56
the investigation.
In the same vein, the Board also argues that the administrative
process is designed "to allow the governor to make rational, rather than arbitrary
decisions" and that the information releases allow access to "valuable information about
the applicant's medical, psychiatric, legal, employment, and educational history." And,
in light of the phase two process involving investigation and notice to crime victims, the
Board asserts that creating a context in which the applicant later might decline to submit
the release forms could lead to unnecessary administrative burdens for the Board and
unnecessary emotional burdens for crime victims.
56 See AS 33.20.080(a). At oral argument before us, the Board asserted that
the information release forms are used only after the governor gives notice that clemency
is being considered and asks the Board to conduct its statutorily required investigation.
Larson has not suggested otherwise, and we express no opinion whether the Board could
usethereleasesfor adifferent purposewithoutinfringing on an applicant's constitutional
rights.
We also note three things about the current medical information release
form in the record. First, it has language, apparently left over from the former
administrative process for clemency applications, that does not conform with the new
administrative process: It states that the release will expire "upon final decision by the
. . . Board as to whether to forward the application to the Office of the Governor." Under
the current clemency framework, the release expires just when it would be necessary for
the governor's requested investigation. At oral argument to us, the Board acknowledged
the mistake in the form. Second, although the medical information release purports to
be a release under the federal Health Insurance Portability and Accountability Act of
1996, (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of
18, 26, 29, and 42 U.S.C.), it may not be HIPAA-compliant. See Harrold-Jones v.
Drury, 422 P.3d 568, 570-73 (Alaska 2018) (discussing various requirements for
HIPAA-compliant, voluntary medical information release form). Finally, a person
giving a HIPAA-compliant medical information release form may revoke the release at
any time. 45 C.F.R. § 164.508(c)(2)(i) (2019).
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We agree with the Board that requiring signed information release forms
as a part of a clemency application is reasonable and not arbitrary. The requirement
allows the Board to fulfill its investigative duties for the governor and is not an
interference with an applicant's right to make a showing that clemency is an appropriate
57 And we cannot see how changing the process from requiring
act by the governor.
information release forms as a part of an application packet to requiring them only after
the governor asks for an investigation would haveanybearing on thegovernor's ultimate
decision to grant or deny discretionary clemency. Accordingly, we conclude that
Larson's Lewis due process claim has no merit and that the superior court's dismissal of
that claim should be affirmed.
B. Larson's Unconstitutional Conditions Argument
Larson contends that requiringforfeitureofhis constitutional privacyrights
at the application phase of the clemency process violates the unconstitutional conditions
doctrine.58 The unconstitutional conditions doctrine "vindicates the Constitution's
enumerated rights by preventing the government from coercing people into giving them
up."59 It generally is immaterial that a person does not have an entitlement to a benefit;
the U.S. Supreme Court has "repeatedly rejected the argument that if the government
57 See AS 33.20.080(a) (requiring Board to investigate executive clemency
applications and, not later than 120 days after receipt of notice of governor's
consideration of clemency, "submit to the governor a report of the investigation, together
with all other information the board has regarding the person").
58 See supra note 34 (explaining doctrine).
59 Koontz v. St. Johns River Water Mgmt. Dist ., 570 U.S. 595, 604 (2013).
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need not confer a benefit at all, it can withhold the benefit because someone refuses to
60
give up constitutional rights."
The Board argues that the unconstitutional conditions doctrine is
inapplicable to the clemency process by likening it to criminal and post-conviction relief
proceedings, which, it contends, present a "major exception" to the unconstitutional
conditions doctrine. The Board contends that in the criminal context a person may
bargain away fundamental rights in exchange for plea agreements and that courts uphold
those bargains under the waiver doctrine rather than under the unconstitutional
conditions doctrine.61 But the Supreme Court "has not been completely consistent in
60 Id. at 608; see also KathleenM. Sullivan, Unconstitutional Conditions ,102
HARV. L. R EV. 1413, 1415 (1989) (noting doctrine provides that "government may not
grant a benefit on the condition that the beneficiary surrender a constitutional right, even
if the government may withhold that benefit altogether").
61 The Board cites two U.S. Supreme Court cases and a Hawaii Supreme
Court case in support of its argument. Peretz v. United States, 501 U.S. 923, 936 (1991)
(finding no constitutional infirmity in delegation of felony trial jury selection to
magistrate when litigants consent, and noting that "[t]he most basic rights of criminal
defendants are similarly subject to waiver"); Boykin v. Alabama, 395 U.S. 238, 243-44
(1969) (explaining that when a guilty plea is entered in state criminal trial defendant
waives federal constitutional privilege against compulsory self-incrimination, right to
trial by jury, and right to confront one's accusers); Hawaii v. Yong Shik Won, 372 P.3d
1065, 1086 & n.40 (Haw. 2015) (noting that Hawaii supreme court had never applied
unconstitutional conditions doctrine in criminal cases); see also Jason Mazzone, The
Waiver Paradox, 97 NW. U. L. R EV. 801, 801-02 (2003) (explaining two doctrines that
govern whether constitutional right may be waived: "doctrine of criminal waiver,"
allowing criminal defendants to waive various constitutional protections, and
"unconstitutional conditions doctrine," generally prohibiting waiver of other
constitutional rights, particularly First Amendment rights).
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62
adhering to the unconstitutional conditions doctrine" and it is "difficult to predict" the
63
doctrine's application.
We have not directly addressed the doctrine.
The Sixth Circuit Court of Appeals has considered the unconstitutional
conditions doctrine's application to clemency, addressing whether Ohio's clemency
interview procedure imposed an unconstitutional condition on the applicant's
64 Ohio's clemency interview procedure required death row inmates
fundamental rights.
applying for clemency to participate in an interview without counsel and without a
guarantee of immunity from further prosecution.65 The court remanded because the
district court had notaddressed apotentialunconstitutional conditionleading "death-row
inmates to make [the difficult choice] between asserting the Fifth Amendment right and
participating in the clemency review process."66 The court explained that a person with
ongoing post-conviction proceedings has a "measurable interest in avoiding
self-incrimination,"67 and it also noted the apparent lack of a "compelling state interest
62 Chemerinsky, supra note 34, at 570; see also Sullivan, supra note 60, at
1416 (noting that doctrine's application "is riven with inconsistencies").
63 La. Pac. Corp. v. Beazer Materials & Servs., Inc., 842 F. Supp. 1243, 1248
(E.D. Cal. 1994) ("[T]his court would be less than candid if it did not acknowledge that
the occasions when the doctrine is applied and when it is not are difficult to predict.").
64 Woodard v. Ohio Adult Parole Auth. , 107 F.3d 1178, 1188 (6th Cir. 1997),
rev'd, 523 U.S. 272 (1998).
65 Id.
66 Id. at 1189.
67 Id. ; cf. Graham v. Durr, 433 P.3d 1098, 1102-04 (Alaska 2018) (discussing
retention of privilege against self-incrimination in civil lawsuit while criminal appeal still
pending).
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68
in requiring waiver of Fifth Amendment rights by clemency interviewees." It then
addressed potential objections to the doctrine's application, including "in instances
where criminal defendants have waived constitutional rights in exchange for 'benefits,'
without any resulting unconstitutional conditions problem." 69
On later appeal to the U.S. Supreme Court the inmate again argued "that
the interview unconstitutionally conditions his assertion of the right to pursue clemency
on his waiver of the right to remain silent."70 Though acknowledging the Sixth Circuit's
conclusion that the unconstitutional conditions doctrine could be applied, the Supreme
Court determined it was "unnecessary to address it" in its decision.71 The Supreme Court
reasoned that the interview procedures "d[id] not under any view violate the Fifth
Amendment privilege."72 Questioning how an inmate's testimony at a "voluntary
interview" "would be 'compelled' within the meaning of the Fifth Amendment," the
Court instead characterized the issue as a matter of choice.73 It likened the inmate's
choice between "remaining silent" or "providing information" in the interview "at the
risk of damaging his case for clemency or for postconviction relief" to "the sorts of
choices that a criminal defendant must make in the course of criminal proceedings, none
68 Woodard, 107 F.3d at 1197.
69 Id. at 1190-92.
70
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 285-86 (1998).
71 Id. at 286.
72 Id.
73 Id. at 286-88.
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74
of which has ever been held to violate the Fifth Amendment." The Court thus held that
Ohio's clemency proceedings did notviolatetheFifthAmendment privilegeagainst self-
incrimination.75
A law review article by Professor Daniel Kobil supports the doctrine's
76 Kobil explains that "[i]n the clemency context,
application in the clemency process.
as with other unconstitutional conditions cases, it is difficult to identify with precision
the conditions that would actually be invalidated by the judiciary."77 But he asserts that
courts "could properly invalidate" a condition if it "unreasonably advanced the
executive's own interests" or if it "burdened a fundamental right without adequately
advancing the public interest."78
Kobil describes a federal case involving President Richard Nixon's
commutation of Jimmy Hoffa's sentence subject to the condition that he "not engage in
direct or indirect management of any labor organization" until 1980.79 After release
80 The
Hoffa argued that the commutation condition violated his First Amendment rights.
district court rejected his unconstitutional condition argument, but it acknowledged that
74 Id.
75 Id. at 288.
76 Daniel T . Kobil, Compelling Mercy: Judicial Review and the Clemency
T. THOMAS L.J. 698, 714-19 (2012).
Power, 9 U. S
77 Id. at 718.
78 Id. at 717-19.
79 Hoffa v. Saxbe, 378 F. Supp. 1221, 1224 (D.D.C. 1974); Kobil, supra
note 76, at 715.
80 Kobil, supra note 76, at 715; Hoffa, 378 F. Supp. at 1225.
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81
the doctrine could apply in the clemency context. Concerning the President's broad
discretion in conditioning clemency, thedistrict court recognized that a"condition which
to some degree impinges on [constitutional] rights and liberties is not thereby
unenforceable," but it also acknowledged that "there are obvious limits beyond which
82 The court noted as an example of an unenforceable
the President may not go."
condition "requiring the commutee to forego supporting any candidate for political
office, except the President who commuted his sentence."83 The court determined that
a lawful condition must be "directly related to the public interest" and must "not
unreasonably infringe on the individual commutee's constitutional freedoms."84 The
court held the condition served the public interest and did not violate Hoffa's First
Amendment rights because of the government's "substantial" interest in preserving "the
integrity of labor organizations."85
Review of the above arguments supports the conclusion that the
unconstitutional conditions doctrine could apply to the clemency process. The Alaska
Constitutional Convention minutes and the history of the executive clemency statutes
suggest that there may be constitutional limits on the governor's broad discretion to grant
clemency.86 We therefore will assume that the unconstitutional conditions doctrine can
apply to Alaska's clemency process, although we do not need to decide today under
81 Kobil, supra note 76 at 716; Hoffa, 378 F. Supp. at 1234-35.
82 Hoffa, 378 F. Supp. at 1234-35.
83
Id. at 1234-35 n.48.
84 Id. at 1236.
85 Id. at 1237-38, 1240.
86 See supra pp. 2-8.
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87
which circumstances the doctrine may apply. This leaves open the question of the
appropriate test to apply. Though Larson asserts that requiring the forfeiture of his
privacy in thefirstphase of the clemency process violates the unconstitutional conditions
doctrine, he does not develop a comprehensive argument in his brief or suggest the
applicabletest. Quoting Burgess v.Lowery , theBoard proposes ageneral reasonableness
test, explaining that "conditions can lawfully be imposed on the receipt of a benefit . . .
provided the conditions are reasonable." 88
The Board did not brief how we should approach determining what is
"reasonable" in this context, perhaps because it presents the proposition as "well
established." But there does not appear to be a uniform test.89 For example, a Seventh
87 For example, because some rights are not absolute, the unconstitutional
conditions doctrine may not apply if the party asserting the claim cannot first establish
the existence of a constitutional right that would be waived by the government benefit.
See Messerli v. State, 626 P.2d 81, 83 (Alaska 1980) ("In expressing the rights to free
speech and privacy, the framers of our constitution appear to have recognized a right of
universal freedom and a right to be left alone . . . . But these rights, in a free society such
as ours, have never been recognized as absolute and without limitations." (footnote
omitted)).
88 Burgess v. Lowery, 201 F.3d 942, 947 (7th Cir. 2000). In Burgess the
father and wife of death-row inmates challenged the practice of prison officials requiring
them "to submit to a strip search as a condition of being permitted to visit the inmate."
Id. at 943. Noting that this practice "seems clearly to exceed the benefits . . . by a wide
margin," the Seventh Circuit Court of Appeals determined that "a general conditioning
of prison visitation on subjection to a strip search is manifestly unreasonable." Id. at
947-48. In a later decision, United States v. Cranley, the Seventh Circuit again discussed
unconstitutional conditions and noted that it seemed "reasonable"to condition the option
of parole on requiring a convicted criminal to answer questions by law enforcement
officers concerning criminal conduct. 350 F.3d 617, 618-21 (7th Cir. 2003).
89 See Dolan v. City of Tigard, 512 U.S. 374, 407 n.12 (1994) ("Although it
has a long history, the 'unconstitutional conditions' doctrine has for just as long suffered
(continued...)
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Circuit district court has explained that "[i]n determining whether a condition is
reasonable, the government interest and the justification for the imposed condition must
90 And in applying
be taken into account, as well as the nature of the required sacrifice."
the doctrine, the Illinois Supreme Court determined a statute was unconstitutional as
applied using a two-pronged test: "[F]irst, is there an essential nexus between the
condition burdening rights and a legitimate state interest; and second, is there a 'rough
proportionality' between the burden on the individual and the harm the government
seeks to remedy through the condition."91 On the other hand, the First Circuit Court of
Appeals has applied a germaneness test, explaining that "if a condition is
germane - that is, if the condition is sufficiently related to the benefit - then it may
validly be imposed."92
89 (...continued)
from notoriously inconsistent application; it has never been an overarching principle of
constitutional law that operates with equal force regardless of the nature of the rights and
powers in question." (citing Home Ins. Co. v. Morse, 87 U.S. 445, 451 (1874))); La. Pac.
Corp. v. Beazer Materials & Servs., Inc., 842 F. Supp. 1243, 1249 (E.D. Cal. 1994)
(noting "the absence of a tenable theoretical base and what frequently appear to be
inconsistent results renders decision-making [concerning the doctrine] an uncertain
task"); see also Gonya v. Comm'r, N.H. Ins. Dep't, 899 A.2d 278, 284 (N.H. 2006)
("[T]he doctrine of unconstitutional conditions does not require that the same standards
be applied in every case to which the doctrine applies, regardless of the nature of the
constitutional right at issue.").
90 Cesar v. Achim, 542 F. Supp. 2d 897, 901-02 (E.D. Wis. 2008) (holding
that "it is not an unconstitutional condition on [detainee's] right to appeal" if government
prolongs detention when detaineeappealsremovalproceeding"becausedetention during
removal proceedings and the removal period is constitutionally permissible").
91 McElwain v. Office of Ill. Sec'y of State, 39 N.E.3d 550, 559 (Ill. 2015)
(quoting Dolan, 512 U.S. at 386-91).
92 Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 747 (1st Cir.
(continued...)
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We conclude that under any articulated test, Larson's claim fails. We
already have discussed the reasonableness of requiring signed information releases with
93 The Board has an interest in requiring clemency applicants
the clemency application.
to submit the information releases so that it can timely complete its investigation and
report as required by statute. And given that (1) the releases are intended for the Board's
use only in a governor-requested investigation for possible clemency, and (2) Larson
does not contend that it is unconstitutional to require the information releases for that
94
purpose, the justification for the requirement outweighs any privacy sacrifice inherent
in providing information release forms in the clemency application packet for the
Board's contingent use in a later clemency investigation.95
VI. CONCLUSION
The superior court's dismissal of Larson' s lawsuit against the Board
is AFFIRMED.
92 (...continued)
1995) (holding condition that entertainment business not operate during certain morning
hours was germane to grant of license and thus was not unconstitutional condition); see
also Felkner v. R.I. Coll., 203 A.3d 433, 453 (R.I. 2019) (quoting Dedham for
germaneness test); Gonya v. Comm'r, N.H. Ins. Dep't, 899 A.2d 278, 284, 287 (N.H.
2006) (applying germaneness test for challenge to statute conditioning benefit related to
insurance claim on "release of the insured from liability up to the applicable policy
limits").
93 See supra pp. 20-21.
94 Larson's concession is consistent with the Board's argument that a
clemency applicant "has a diminished expectation of privacy in the clemency context."
95 We reiterate that this appeal does not present a hypothetical dispute about
the Board's unauthorized use of signed information release forms.
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