due process clause in Alaska

1990For the due process clause to apply, there must be “the deprivation of an individual interest of sufficient importance to warrant constitutional protection.” Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973).

1986We have stated that once a due process claim is raised, it must first be determined “whether there is a deprivation of an individual interest of sufficient importance to warrant constitutional protection.” Herscher v. State Department of Commerce, 568 P.2d 996, 1002 (Alaska 1977), quoting Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973).

2023Servs., Div. of Fam. & Youth Servs., 71 P.3d 811, 831 (Alaska 2003) (explaining that child custody is “one of the most basic of all civil liberties,” and recognizing that “the protections of the due process clause . . . should be accorded significant weight” (quoting Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979))). 48 Matthisen v. Matthisen, No. S-11317, 2005 WL 1253497 , at *8 (Alaska May 25, 2005). 49 See RESTATEMENT OF THE LAW: CHILDREN AND THE LAW intro. note (AM.

2013See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 383 (Alaska 2007) (“Because . . . a respondent’s fundamental rights to liberty and to privacy are infringed upon by involuntary commitment and involuntary administration of psychotropic medication proceedings, the right to counsel in civil proceedings is guaranteed by the due process clause of the Alaska Constitution.”); V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (“[T]he due process clause of the Alaska Constitution guarantees indigent parents the right to court-appointed counsel in proceedings for the termination of parental rights.”

2025Safety, 774 P.2d 1326, 1332-33 (Alaska 1989) (discussing civil litigant’s due process right to “confront and cross-examine witnesses”). 60 Titus v. State, Dep’t of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1280 (Alaska 2013) (citing Mathews, 424 U.S. at 339-49 ). 61 Mathews, 424 U.S. at 335 . 62 See City of Homer v. Campbell, 719 P.2d 683, 684 (Alaska 1986) (“We have stated that once a due process claim is raised, it must first be determined ‘whether there is a deprivation of an individual interest of sufficient importance to warrant constitutional protection.’ ” (quoting Herscher v. Stat

2025Safety, 774 P.2d 1326, 1332-33 (Alaska 1989) (discussing civil litigant’s due process right to “confront and cross-examine witnesses”). 60 Titus v. State, Dep’t of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1280 (Alaska 2013) (citing Mathews, 424 U.S. at 339-49 ). 61 Mathews, 424 U.S. at 335 . 62 See City of Homer v. Campbell, 719 P.2d 683, 684 (Alaska 1986) (“We have stated that once a due process claim is raised, it must first be determined ‘whether there is a deprivation of an individual interest of sufficient importance to warrant constitutional protection.’ ” (quoting Herscher v. Stat

2023P. 35.1(a)(4) (same). 39 AS 18.85.100(a), (c); Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (holding that the due process clause of the Alaska Constitution — article I, section 7 — guarantees the right to counsel in a first application for post-conviction relief); Wassilie, 331 P.3d at 1289-91 (recognizing that an indigent defendant is entitled to court-appointed counsel when litigating an appeal from the trial court’s decision on a first post-conviction relief application, including a dismissal based on a certificate of no arguable merit).

2023The larger legal implications of this decision — and the juvenile brain research it was based on — did not become clear until the United States Supreme Court decided Graham, Miller, and Montgomery.234 As this opinion has 233 (...continued) 74 P.3d 889, 895 (Alaska 2003) (allowing successive applications for ineffective assistance of counsel during previous post-conviction relief proceedings); see also Roberts v. State, 164 P.3d 664, 666 (Alaska App. 2007) (recognizing that there might be cases where the due process clause of the Alaska Constitution would require an exception to the statutory b

2025Safety, 774 P.2d 1326, 1332-33 (Alaska 1989) (discussing civil litigant’s due process right to “confront and cross-examine witnesses”). 60 Titus v. State, Dep’t of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1280 (Alaska 2013) (citing Mathews, 424 U.S. at 339-49 ). 61 Mathews, 424 U.S. at 335 . 62 See City of Homer v. Campbell, 719 P.2d 683, 684 (Alaska 1986) (“We have stated that once a due process claim is raised, it must first be determined ‘whether there is a deprivation of an individual interest of sufficient importance to warrant constitutional protection.’ ” (quoting Herscher v. Stat

2025Safety, 774 P.2d 1326, 1332-33 (Alaska 1989) (discussing civil litigant’s due process right to “confront and cross-examine witnesses”). 60 Titus v. State, Dep’t of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1280 (Alaska 2013) (citing Mathews, 424 U.S. at 339-49 ). 61 Mathews, 424 U.S. at 335 . 62 See City of Homer v. Campbell, 719 P.2d 683, 684 (Alaska 1986) (“We have stated that once a due process claim is raised, it must first be determined ‘whether there is a deprivation of an individual interest of sufficient importance to warrant constitutional protection.’ ” (quoting Herscher v. Stat

2022Servs., Off. of Child.’s Servs., 276 P.3d 422, 433 (Alaska 2012) (“Although the due process analysis is a flexible and contextual one focusing on the interest and not the outcome, there must be some actual prejudice. . . and not merely the ‘theoretical possibility of prejudice.’ ” (quoting D.M. v. State, Div. of Fam. & Youth Servs., 995 P.2d 205, 212 (Alaska 2000))). 36 Cf. Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1015 (Alaska 1999) (explaining that criminal statute on its own does not imply private cause of action). 37 The Tangwalls make references to other cases that are not

2013Servs., Office of Children’s Servs., 276 P.3d 422, 433 (Alaska 2012) (“Although the due process analysis is a flexible and contextual one focusing on the interest and not the outcome, there must be some actual prejudice under the second prong and not merely the ‘theoretical possibility of prejudice.’ ”). 42 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212 (Alaska 2000). 43 It may be a better practice to provide parties a copy of the proposed decision and allow for reconsideration based on factual or legal errors, but in this case, the failure to do so is not a violation of due p

2022Servs., Off. of Child.’s Servs., 276 P.3d 422, 433 (Alaska 2012) (“Although the due process analysis is a flexible and contextual one focusing on the interest and not the outcome, there must be some actual prejudice. . . and not merely the ‘theoretical possibility of prejudice.’ ” (quoting D.M. v. State, Div. of Fam. & Youth Servs., 995 P.2d 205, 212 (Alaska 2000))). 36 Cf. Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1015 (Alaska 1999) (explaining that criminal statute on its own does not imply private cause of action). 37 The Tangwalls make references to other cases that are not

2013Servs., Office of Children's Servs., 276 P.3d 422, 433 (Alaska 2012) ("Although the due process analysis is a flexible and contextual one focusing on the interest and not the outcome, there must be some actual prejudice under the second prong and not merely the 'theoretical possibility of prejudice.' "). 42 .

2018See ABA Standards for Criminal Justice, Speedy Trial and Timely Resolution of Criminal Cases, § 12-2.2 (3d ed. 2006). 6 2 ABA Standards for Criminal Justice § 12-2.2(a) cmt. at 12-21 (2d ed. 1982). 7 Id. at 12-23-25; see also State v. Gonzales , 156 P.3d 407 , 412 (Alaska 2007) (recognizing the due process claim of pre-accusation delay under the Alaska Constitution); United States v. Marion , 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971). 8 2 ABA Standards for Criminal Justice § 12-2.2(a) (2d ed. 1982).

2015Lovasco, 431 U.S. at 790 , 97 S.Ct. 2044 (proof of actual prejudice is "a necessary but not sufficient element of a due process claim"); Gonzales, 156 P.3d at 411 ("To establish an unconstitutional pre-indictment delay, the defendant must prove both that the delay was not reasonable and that the defendant suffered actual prejudice from the delay."). 12 .

2010Safety, 774 P.2d 1326 , 1331-32 & n. 12 (Alaska 1989) (finding that when the State fails to preserve evidence, the jury should be directed to presume that the evidence would have been favorable to the defendant). [9] See March v. State, 859 P.2d 714, 716 (Alaska App.1993) ("While officers have a duty to preserve potentially exculpatory evidence actually gathered during a criminal investigation, the due process clause has never required officers to undertake a state-of-the-art investigation of all reported crimes."). [10] Thorne, 774 P.2d at 1331 -32 & n. 12. [11] Putnam v. State, 629 P.2d 35,

1996See Stephan v. State, 711 P.2d 1156 (Alaska 1985); McMahan v. State, 617 P.2d 494 , 502 n. 19 (Alaska 1980); Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980); compare Klumb v. State, 712 P.2d 909, 912 (Alaska App. 1986) ("Pursuant to Criminal Rule 16, the state has an affirmative duty to collect and preserve material evidence.") with March v. State, 859 P.2d 714, 716 (Alaska *1278 App. 1993) ("While officers have a duty to preserve potentially exculpatory evidence actually gathered during a criminal investigation, the due process clause has never required officers to undertake a state-of-the-

1989In Anchorage v. Serrano, 649 P.2d 256, 258 (Alaska App.1982) (footnote omitted), we held that “the due process clause of the Alaska Constitution requires the prosecution to make reasonable efforts to preserve a breath sample or to take other steps to allow a defendant to verify the results of the breathalyzer test.” Swanson argues that the Juneau Police Department policy of offering the opportunity for an independent blood test does not satisfy the requirement set forth in Serrano, 1 This argument is foreclosed by our decision in Gundersen v. Anchorage, 762 P.2d 104 (Alaska App.1988), aff'd on

1985Gilbert Serrano, 649 P2d 256 , the Appellate Court concluded that the due process clause of the Alaska Constitution requires the prosecution to make a reasonable effort to preserve the breath sample or to take steps to allow a defendant to verify or dispute the results of the breath test.

2012The trooper's failure to record the DUI processing In Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985), the Alaska Supreme Court held that the due process clause of our state constitution requires the police to make an audio recording, whenever feasible, of all custodial interrogations that occur in a place of detention (for example, police stations).

2010Safety, 774 P.2d 1326 , 1331-32 & n. 12 (Alaska 1989) (finding that when the State fails to preserve evidence, the jury should be directed to presume that the evidence would have been favorable to the defendant). [9] See March v. State, 859 P.2d 714, 716 (Alaska App.1993) ("While officers have a duty to preserve potentially exculpatory evidence actually gathered during a criminal investigation, the due process clause has never required officers to undertake a state-of-the-art investigation of all reported crimes."). [10] Thorne, 774 P.2d at 1331 -32 & n. 12. [11] Putnam v. State, 629 P.2d 35,

1991The due process clause of the Alaska Constitution is “flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding.” Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974) (citing Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162 , 71 S.Ct. 624, 643 , 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

1991The due process clause of the Alaska Constitution is "flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding." Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974) (citing *279 Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162 , 71 S.Ct. 624, 643 , 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

1990Id. at 145 (footnote omitted).

1981Thus, in Shagloak v. State, 597 P.2d 142 (Alaska 1979), the court went beyond Pearce in holding that the due process clause of the Alaska Constitution prohibits an increase in sentence upon retrial under any circumstances.

1979“Due process is flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding.” 7 Thus we have previously held that the due process clause of the Alaska Constitution requires that counsel be provided for defendants in civil contempt proceedings, Otton v. Zaborac, 525 P.2d 537 (Alaska 1974), and in paternity suits, Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977), where the state supplies counsel to the mother.

1979"Due process is flexible, and the concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding." [7] Thus we have previously held that the due process clause of the Alaska Constitution requires that counsel be provided for defendants in civil contempt proceedings, Otton v. Zaborac, 525 P.2d 537 (Alaska 1974), and in paternity suits, Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977), where the state supplies counsel to the mother.

2018He cites the U.S. Supreme Court decision Wolff v. McDonnell, which holds that 2 James v. State, Dep’t of Corr., 260 P.3d 1046, 1050 (Alaska 2011) (first quoting Brandon v. State, Dep’t of Corr., 73 P.3d 1230, 1233 (Alaska 2003); then quoting Button v. Haines Borough, 208 P.3d 194, 200 (Alaska 2009)). -4- 1677 the due process clause of the U.S. Constitution requires “a ‘written statement by the factfinders as to the evidence relied on and reasons’ for [a prison] disciplinary action.”3 The Department of Corrections argues that the audio recording of the disciplinary hearing satisfied due process

2012But if there was a due process violation, it was cured because as of the proceedings in superior court Smith had notice of the amount he was required to pay, he was given the opportunity to challenge it in the superior court, and the amount exceeded the amount that was seized in his account. 3 Interior Alaska Airboat Ass’n, Inc. v. State, Bd. of Game, 18 P.3d 686, 689 (Alaska 2001). 4 AS 33.30.295(b)(1); Brandon v. State, Dep’t of Corr., 73 P.3d 1230, 1233 (Alaska 2003). 5 Brandon, 73 P.3d at 1233 . -5- 1431 provisions conferring rule-making authority on the agency’ and whether it is ‘reasonab

2017Under the due process standard, a defendant has the burden of proving both that the delay was unjustified and that the defendant suffered actual prejudice.94 Under the speedy trial standard, if the 89 Id. 90 Id. (quoting Commonwealth v. Gove, 320 N.E.2d 900, 905 (Mass. 1974)). 91 Id. 92 Id. (quoting Gove, 320 N.E.2d at 907 ). 93 Id. (quoting Jacobson v. Winter, 415 P.2d 297, 300 (Idaho 1966)). 94 State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991). -23- 7200 defendant can show a delay of sufficient duration to be presumptively prejudicial, the four-factor balancing test is triggered.95 Under

2017It imposes an incentive on the State to bring the accused to trial promptly and protects interests of the accused, placed at risk by the filing of the information, that are not well protected by the due process standard. 95 Barker v. Wingo, 407 U.S. 514, 531 (1972). 96 Id.; McNelly v. Blanas, 336 F.3d 822, 827 (9th Cir. 2003). 97 Mouser, 806 P.2d at 342 . 98 United States v. Marion, 404 U.S. 307, 321-22 (1971). 99 Mouser, 806 P.2d at 339 . -24- 7200 For these reasons, we conclude that speedy trial time begins to run with the filing of an information.100 Accordingly, Wright’s constitutional spe

2013See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 383 (Alaska 2007) (“Because . . . a respondent’s fundamental rights to liberty and to privacy are infringed upon by involuntary commitment and involuntary administration of psychotropic medication proceedings, the right to counsel in civil proceedings is guaranteed by the due process clause of the Alaska Constitution.”); V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (“[T]he due process clause of the Alaska Constitution guarantees indigent parents the right to court-appointed counsel in proceedings for the termination of parental rights.”

2007I, § 7; VF. v. State, 666 P.2d 42 , 45 & n. 2 (Alaska 1983) (holding that the due process clause of the Alaska Constitution *384 guarantees the right to effective counsel in proceedings for the termination of parental rights). 73 . 666 P.2d at 45 (citations omitted). 74 .

2010Safety, 774 P.2d 1326 , 1331-32 & n. 12 (Alaska 1989) (finding that when the State fails to preserve evidence, the jury should be directed to presume that the evidence would have been favorable to the defendant). [9] See March v. State, 859 P.2d 714, 716 (Alaska App.1993) ("While officers have a duty to preserve potentially exculpatory evidence actually gathered during a criminal investigation, the due process clause has never required officers to undertake a state-of-the-art investigation of all reported crimes."). [10] Thorne, 774 P.2d at 1331 -32 & n. 12. [11] Putnam v. State, 629 P.2d 35,

2010See March v. State, 859 P.2d 714, 716 (Alaska App.1993) ("While officers have a duty to preserve potentially exculpatory evidence actually gathered during a criminal investigation, the due process clause has never required officers to undertake a state-of-the-art investigation of all reported crimes."). 10 .

2018See ABA Standards for Criminal Justice, Speedy Trial and Timely Resolution of Criminal Cases, § 12-2.2 (3d ed. 2006). 6 2 ABA Standards for Criminal Justice § 12-2.2(a) cmt. at 12-21 (2d ed. 1982). 7 Id. at 12-23-25; see also State v. Gonzales , 156 P.3d 407 , 412 (Alaska 2007) (recognizing the due process claim of pre-accusation delay under the Alaska Constitution); United States v. Marion , 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971). 8 2 ABA Standards for Criminal Justice § 12-2.2(a) (2d ed. 1982).

2018See ABA Standards for Criminal Justice, Speedy Trial and Timely Resolution of Criminal Cases, § 12-2.2 (3d ed. 2006). 6 2 ABA Standards for Criminal Justice § 12-2.2(a) cmt. at 12-21 (2d ed. 1982). 7 Id. at 12-23-25; see also State v. Gonzales , 156 P.3d 407 , 412 (Alaska 2007) (recognizing the due process claim of pre-accusation delay under the Alaska Constitution); United States v. Marion , 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971). 8 2 ABA Standards for Criminal Justice § 12-2.2(a) (2d ed. 1982).

1993DISCUSSION A. BRANDON’S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED IN THE DISCIPLINARY HEARING In McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), we examined the manner in which the United States Supreme Court applied the due process clause of the Fourteenth Amendment to prisoner disciplinary hearings in Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974).

1993DISCUSSION A. BRANDON'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED IN THE DISCIPLINARY HEARING In McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), we examined the manner in which the United States Supreme Court applied the due process clause of the Fourteenth Amendment to prisoner disciplinary hearings in Wolff v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974).

1979The Court suggested that in civil proceedings, even when “particularly important individual interests” are implicated, the due process clause requires that the moving party satisfy only the “clear and convincing” standard of proof. —— U.S. at -, -, 99 S.Ct. 1804 .

1979The standard of proof beyond a reasonable doubt is “designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Addington v. Texas, - U.S. -, -, 99 S.Ct. 1804, 1808 , 60 L.Ed. 323 (footnote omitted). .In Addington, the Supreme Court held that, as a matter of federal law, the due process clause does not require proof beyond a reasonable doubt in a civil proceeding under state law to involuntarily commit an individual to a state mental hospital for an indefinite period of time.

2020She is therefore entitled to some form of hearing appropriate to the circumstances before revocation, absent an emergency situation or a public safety concern requiring summary action.” (footnote omitted)). 68 See Etheredge v. Bradley, 502 P.2d 146, 153 (Alaska 1972) (“We therefore hold that summary property attachment authorized by Civil Rule 89 violates article I, section 7 of the Alaska [C]onstitution and the due process clause of the fourteenth amendment of the United States Constitution.”). -18- 7440 exceptions to this pre-termination hearing requirement are in emergency situations or whe

1998In Etheredge v. Bradley, 502 P.2d 146, 151-153 (Alaska 1972), we held that summary property attachment pursuant to Civil Rule 89 violated article I, section 7 of the Alaska Constitution and the due process clause of the Fourteenth Amendment of the Federal Constitution.

2010Id. at 308 n. 30 (quoting Haggblom v. City of Dillingham, 191 P.3d 991, 995 (Alaska 2008)). 34 . 984 P.2d 1122 (Alaska 1999). 35 .

2004See White v. State, Dep't of Natural Res., 984 P.2d 1122, 1126 (Alaska 1999).