federal due process clause in Alaska

2022The upshot is that in cases in which an individual is not incarcerated in prison, the extent of his existing liberty within the relevant program — and not just the extent of his reduced liberty in a challenged placement — must be taken into account.[123] That court viewed release on electronic monitoring as “sufficiently similar to traditional parole . . . to merit protection” under the federal due process clause.124 Other courts have likewise concluded that release on electronic monitoring or community custody programs confers on a prisoner a liberty interest that is protected by due process,

2022The upshot is that in cases in which an individual is not incarcerated in prison, the extent of his existing liberty within the relevant program — and not just the extent of his reduced liberty in a challenged placement — must be taken into account.[123] That court viewed release on electronic monitoring as “sufficiently similar to traditional parole . . . to merit protection” under the federal due process clause.124 Other courts have likewise concluded that release on electronic monitoring or community custody programs confers on a prisoner a liberty interest that is protected by due process,

2022The prisoner in that case had sued individual correctional officers under 42 U.S.C. § 1983 ,103 claiming among other things that their decision to remove her from electronic monitoring without a hearing violated her Fourteenth Amendment right to due process.104 In applying the federal due process framework, we cited Sandin v. Conner for the proposition that “[t]he point at which 101 239 P.3d 723, 725 (Alaska 2010). 102 See Alaska Pub.

2022The prisoner in that case had sued individual correctional officers under 42 U.S.C. § 1983,103 claiming among other things that their decision to remove her from electronic monitoring without a hearing violated her Fourteenth Amendment right to due process.104 In applying the federal due process framework, we cited Sandin v. Conner for the proposition that “[t]he point at which 101 239 P.3d 723, 725 (Alaska 2010). 102 See Alaska Pub.

2022Brandon, 73 P.3d at 1234 . 117 Morrissey v. Brewer, 408 U.S. 471, 482 (1972). 118 González-Fuentes, 607 F.3d at 887 (observing that prisoner litigants were “living with either close relatives, significant others, or spouses, and in many cases with (continued...) -34- 7616 restrictions, “[i]mplicit in the system’s concern with . . . violations is the notion that the [prisoner] is entitled to retain his liberty as long as he substantially abides by the conditions” set forth by DOC.119 Taking this liberty away from the prisoner and remanding him to a correctional facility “inflicts a ‘grievous lo

2022Brandon, 73 P.3d at 1234. 117 Morrissey v. Brewer, 408 U.S. 471, 482 (1972). 118 González-Fuentes, 607 F.3d at 887 (observing that prisoner litigants were “living with either close relatives, significant others, or spouses, and in many cases with (continued...) -34- 7616 restrictions, “[i]mplicit in the system’s concern with . . . violations is the notion that the [prisoner] is entitled to retain his liberty as long as he substantially abides by the conditions” set forth by DOC.119 Taking this liberty away from the prisoner and remanding him to a correctional facility “inflicts a ‘grievous los

2022The upshot is that in cases in which an individual is not incarcerated in prison, the extent of his existing liberty within the relevant program — and not just the extent of his reduced liberty in a challenged placement — must be taken into account.[123] That court viewed release on electronic monitoring as “sufficiently similar to traditional parole . . . to merit protection” under the federal due process clause.124 Other courts have likewise concluded that release on electronic monitoring or community custody programs confers on a prisoner a liberty interest that is protected by due process,

2022The upshot is that in cases in which an individual is not incarcerated in prison, the extent of his existing liberty within the relevant program — and not just the extent of his reduced liberty in a challenged placement — must be taken into account.[123] That court viewed release on electronic monitoring as “sufficiently similar to traditional parole . . . to merit protection” under the federal due process clause.124 Other courts have likewise concluded that release on electronic monitoring or community custody programs confers on a prisoner a liberty interest that is protected by due process,

2022Brandon, 73 P.3d at 1234 . 117 Morrissey v. Brewer, 408 U.S. 471, 482 (1972). 118 González-Fuentes, 607 F.3d at 887 (observing that prisoner litigants were “living with either close relatives, significant others, or spouses, and in many cases with (continued...) -34- 7616 restrictions, “[i]mplicit in the system’s concern with . . . violations is the notion that the [prisoner] is entitled to retain his liberty as long as he substantially abides by the conditions” set forth by DOC.119 Taking this liberty away from the prisoner and remanding him to a correctional facility “inflicts a ‘grievous lo

2022Brandon, 73 P.3d at 1234. 117 Morrissey v. Brewer, 408 U.S. 471, 482 (1972). 118 González-Fuentes, 607 F.3d at 887 (observing that prisoner litigants were “living with either close relatives, significant others, or spouses, and in many cases with (continued...) -34- 7616 restrictions, “[i]mplicit in the system’s concern with . . . violations is the notion that the [prisoner] is entitled to retain his liberty as long as he substantially abides by the conditions” set forth by DOC.119 Taking this liberty away from the prisoner and remanding him to a correctional facility “inflicts a ‘grievous los

2022The upshot is that in cases in which an individual is not incarcerated in prison, the extent of his existing liberty within the relevant program — and not just the extent of his reduced liberty in a challenged placement — must be taken into account.[123] That court viewed release on electronic monitoring as “sufficiently similar to traditional parole . . . to merit protection” under the federal due process clause.124 Other courts have likewise concluded that release on electronic monitoring or community custody programs confers on a prisoner a liberty interest that is protected by due process,

2022The upshot is that in cases in which an individual is not incarcerated in prison, the extent of his existing liberty within the relevant program — and not just the extent of his reduced liberty in a challenged placement — must be taken into account.[123] That court viewed release on electronic monitoring as “sufficiently similar to traditional parole . . . to merit protection” under the federal due process clause.124 Other courts have likewise concluded that release on electronic monitoring or community custody programs confers on a prisoner a liberty interest that is protected by due process,

2020I, § 7. 27 Dennis O., 393 P.3d at 406 (quoting Ostrow v. Higgins, 722 P.2d 936, 942 (Alaska 1986)). -9- 7440 Lebron v. National Railroad Passenger Corp.,28 which we followed in Laverty v. Alaska Railroad Corp.29 In considering whether an entity is subject to the federal due process clause, federal courts appear to first ask whether the entity is part of the government, and then, if it is not, whether the entity’s actions nevertheless constituted government action.30 The U.S. Supreme Court formulated a two-part test in Lebron for determining whether a nominally private entity is itself the gove

2020I, § 7. 27 Dennis O., 393 P.3d at 406 (quoting Ostrow v. Higgins, 722 P.2d 936, 942 (Alaska 1986)). -9- 7440 Lebron v. National Railroad Passenger Corp.,28 which we followed in Laverty v. Alaska Railroad Corp.29 In considering whether an entity is subject to the federal due process clause, federal courts appear to first ask whether the entity is part of the government, and then, if it is not, whether the entity’s actions nevertheless constituted government action.30 The U.S. Supreme Court formulated a two-part test in Lebron for determining whether a nominally private entity is itself the gove

2020I, § 7. 27 Dennis O., 393 P.3d at 406 (quoting Ostrow v. Higgins, 722 P.2d 936, 942 (Alaska 1986)). -9- 7440 Lebron v. National Railroad Passenger Corp.,28 which we followed in Laverty v. Alaska Railroad Corp.29 In considering whether an entity is subject to the federal due process clause, federal courts appear to first ask whether the entity is part of the government, and then, if it is not, whether the entity’s actions nevertheless constituted government action.30 The U.S. Supreme Court formulated a two-part test in Lebron for determining whether a nominally private entity is itself the gove

2020Ass’n, 782 F.3d 736, 741-43 (6th Cir. 2015) (declining to rule on state-action issue but holding Michigan non­ judicial foreclosure statute providing (1) pre-foreclosure notice including that borrower “has 30 days to request a meeting to attempt to work out a loan modification,” and (2) post-foreclosure redemption period during which borrower may take legal action, satisfied federal due process concerns); cf. id. at 744 (concurring opinion) (concluding that because agency was not state actor, plaintiff’s due process claims failed without regard to Michigan’s non-judicial foreclosure statute).

2020Ass’n, 782 F.3d 736, 741-43 (6th Cir. 2015) (declining to rule on state-action issue but holding Michigan non­ judicial foreclosure statute providing (1) pre-foreclosure notice including that borrower “has 30 days to request a meeting to attempt to work out a loan modification,” and (2) post-foreclosure redemption period during which borrower may take legal action, satisfied federal due process concerns); cf. id. at 744 (concurring opinion) (concluding that because agency was not state actor, plaintiff’s due process claims failed without regard to Michigan’s non-judicial foreclosure statute).

2020Indian Co., 799 F.3d 226, 229 (3d Cir. 2015) (describing tests to determine whether private action should be considered state action and noting that “we may avoid this determination of whether private party conduct constitutes state action when the actor is the government”); see also Ronald J.

2020Ass’n, 782 F.3d 736, 741-43 (6th Cir. 2015) (declining to rule on state-action issue but holding Michigan non­ judicial foreclosure statute providing (1) pre-foreclosure notice including that borrower “has 30 days to request a meeting to attempt to work out a loan modification,” and (2) post-foreclosure redemption period during which borrower may take legal action, satisfied federal due process concerns); cf. id. at 744 (concurring opinion) (concluding that because agency was not state actor, plaintiff’s due process claims failed without regard to Michigan’s non-judicial foreclosure statute).

2020Ass’n, 782 F.3d 736, 741-43 (6th Cir. 2015) (declining to rule on state-action issue but holding Michigan non­ judicial foreclosure statute providing (1) pre-foreclosure notice including that borrower “has 30 days to request a meeting to attempt to work out a loan modification,” and (2) post-foreclosure redemption period during which borrower may take legal action, satisfied federal due process concerns); cf. id. at 744 (concurring opinion) (concluding that because agency was not state actor, plaintiff’s due process claims failed without regard to Michigan’s non-judicial foreclosure statute).

2020Ass’n, 782 F.3d 736, 741-43 (6th Cir. 2015) (declining to rule on state-action issue but holding Michigan non­ judicial foreclosure statute providing (1) pre-foreclosure notice including that borrower “has 30 days to request a meeting to attempt to work out a loan modification,” and (2) post-foreclosure redemption period during which borrower may take legal action, satisfied federal due process concerns); cf. id. at 744 (concurring opinion) (concluding that because agency was not state actor, plaintiff’s due process claims failed without regard to Michigan’s non-judicial foreclosure statute).

1985See Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981). [19] See AS 17.30.110(4)(A), and cases cited in note 9, supra. [20] In the civil forfeiture proceeding there is also the risk, not present in the parole revocation situation, that the prosecution will obtain discovery in order to circumvent the narrower criminal discovery rules.

1985See Lassiter v. Department of Social Services, 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981). [19] See AS 17.30.110(4)(A), and cases cited in note 9, supra. [20] In the civil forfeiture proceeding there is also the risk, not present in the parole revocation situation, that the prosecution will obtain discovery in order to circumvent the narrower criminal discovery rules.