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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

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.").                                                                                                                        



                                                                                                                                                                                                                     -2-                                                                                                                                                                                                       7492
  


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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).  

                                                                    



                                                                                  -3-                                                                           7492
  


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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).  



                                                                                 -4-                                                                          7492
  


----------------------- Page 5-----------------------

                          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...)  



                                                                -6-                                                          7492
  


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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).  



                                                                                                                     -8-                                                                                                                       7492  


----------------------- Page 9-----------------------

                                            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...)  



                                                                                                                                        -9-                                                                                                                              7492
  


----------------------- Page 10-----------------------

                                   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).  



                                                                                                           -10-                                                                                                    7492
  


----------------------- Page 11-----------------------

                   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 . . . .").                                                            



                                                                                                                      -11-                                                                                                                7492
  


----------------------- Page 12-----------------------

                                                                                                                      

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  



                                                               -12-                                                         7492
  


----------------------- Page 13-----------------------

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.  

                                                 



                                                                                                          -13-                                                                                                    7492
  


----------------------- Page 14-----------------------

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.  

                                                                



                                                                                                                                           -14-                                                                                                                                    7492
  


----------------------- Page 15-----------------------

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.  



                                                                     -15-                                                              7492
  


----------------------- Page 16-----------------------

                                                                                                                                                                                       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).  

                                                                                                        



                                                                                                                                     -16-                                                                                                                              7492
  


----------------------- Page 17-----------------------

                    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.  

                              



                                                               -17-                                                         7492
  


----------------------- Page 18-----------------------

"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.   



                                                                                                                            -18-                                                                                                                     7492
  


----------------------- Page 19-----------------------

 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).                                                                                      



                                                                                                                                                                          -19-                                                                                                                                                                   7492
  


----------------------- Page 20-----------------------

                              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).  

                                                                                                                                                                                  



                                                                                              -20-                                                                                       7492
  


----------------------- Page 21-----------------------

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).                                                                     



                                                                                                       -21-                                                                                                 7492
  


----------------------- Page 22-----------------------

                                                                                     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).  

                 



                                                                   -22-                                                             7492
  


----------------------- Page 23-----------------------

                                                                                                                                                                           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.  

                                           



                                                                                            -23-                                                                                      7492
  


----------------------- Page 24-----------------------

                                                                                                    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.  



                                                                     -24-                                                              7492
  


----------------------- Page 25-----------------------

                                                                                         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.  

                                                  



                                                                          -25-                                                                    7492
  


----------------------- Page 26-----------------------

                                                                                                                                  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...)  



                                                                                                                    -26-                                                                                                             7492
  


----------------------- Page 27-----------------------

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...)  



                                                                       -27-                                                                 7492
  


----------------------- Page 28-----------------------

                        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.  

                                                                                                            



                                                                          -28-                                                                     7492
  

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