Adopted by the Constitutional Convention February 5, 1956

Ratified by the People of Alaska April 24, 1956

Became Operative with the Formal Proclamation of Statehood January 3, 1959

Preamble

We the people of Alaska, grateful to God and to those who founded our nation and pioneered this great land, in order to secure and transmit to succeeding generations our heritage of political, civil, and religious liberty within the Union of States, do ordain and establish this constitution for the State of Alaska.

Article I Declaration of Rights

Section 1. Inherent Rights.

This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.

Opinions of attorney general. —

The Board of Fish and Game may provide for area licensing under the provisions of the state constitution. 1959 Alas. Op. Att'y Gen. No. 28.

Following State v. Erickson , 574 P.2d 1 (Alaska 1978), equal protection claims under the Alaska Constitution are measured under a new test which evaluates the importance of the right involved. The more important the right, the greater the burden placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective. April 25, 1979 Op. Att’y Gen.

The analysis for equal protection claims involves three steps: (1) Ascertaining the purposes of the challenged legislation and determining whether they are legitimate; (2) determining whether the means chosen to accomplish the objectives actually do so; and (3) balancing the importance of the state’s interest in the means chosen against the nature of the right allegedly infringed. April 25, 1979 Op. Att’y Gen.

While there clearly are legal challenges which can be mounted to a three-year residence requirement for a grant of state land, a vigorous defense of such a requirement can be made. April 25, 1979 Op. Att’y Gen.

Even if the Alaska supreme court views the right to change one’s residence from another state to Alaska as a fundamental right under the Alaska Constitution, this does not mean that a three-year residence requirement for land disposal necessarily violates that fundamental right. To violate the right of interstate migration, it would have to appear that the durational residence requirement in some way penalized the exercise of that right, and a strong argument can be made that conferring eligibility for a grant of state land after three years residence rewards people exercising their right to move to Alaska rather than penalizing them for exercising it. April 25, 1979 Op. Att’y Gen.

The basic requirement is that the three-year durational residence requirement have some reasonable basis; that is, that it bear a fair and substantial relation to some legitimate legislative purpose. The more extensive the legislative findings regarding the purpose of such a requirement and the reasons for it, the greater the likelihood that it would be sustained. April 25, 1979 Op. Att’y Gen.

The Alaska Housing Finance Corporation cannot constitutionally cease making funds available to mortgage companies that are not headquartered in the state. December 26, 1979 Op. Att’y Gen.

A five-year durational residency requirement for eligibility to participate in a state program is clearly unconstitutional and cannot be defended in the absence of a compelling state interest. November 26, 1982 Op. Att’y Gen.

Five-year residency requirements provided for in the subparagraphs of AS 16.10.310(a)(1) as it existed prior to the 1985 amendment were unconstitutional, since the state’s interest in ensuring that only bona fide resident commercial fishermen qualify for the commercial fishing loan program did not outweigh the infringement on the right of less-than-five-year residents to share in the economic benefits of the program. November 26, 1982 Op. Att’y Gen.

Notes to Decisions

Analysis

I.General Consideration
A.In General

Pluralistic nature of society. —

The United States of America, and Alaska in particular, reflect a pluralistic society, grounded upon such basic values as the preservation of maximum individual choice, protection of minority sentiments, and appreciation for divergent lifestyles. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Duty to enforce federal constitutional law. —

The Alaska supreme court is obliged to enforce national minimal constitutional standards required by the U.S. supreme court’s interpretations of the 14th amendment. State v. Browder, 486 P.2d 925 (Alaska 1971).

It would be an abdication of the Alaska supreme court’s constitutional responsibilities to look only to the U.S. supreme court for guidance. State v. Browder, 486 P.2d 925 (Alaska 1971).

Development of additional constitutional rights. —

The Alaska supreme court is free, and it is under a duty, to develop additional constitutional rights and privileges under the Alaska Constitution if it finds such fundamental rights and privileges to be within the intention and spirit of Alaska’s local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of Alaska’s constitutional heritage. The Alaska supreme court need not stand by idly and passively waiting for constitutional direction from the highest court of the land. Instead, it should be moving concurrently to develop and expound the principles embedded in Alaska constitutional law. State v. Browder, 486 P.2d 925 (Alaska 1971).

The supreme court is under a duty to develop additional constitutional rights and privileges under the Alaska Constitution if it finds such fundamental rights and privileges to be within the intention and spirit of the Alaska local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Effect of decisions of U.S. Supreme court. —

The Alaska supreme court is not bound in expounding the Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution. State v. Browder, 486 P.2d 925 (Alaska 1971).

While some of the terms of this section parallel the language of various federal constitutional provisions, the supreme court has repeatedly held that this court is not obliged to interpret the state constitution in the same manner as the supreme court of the United States has construed parallel provisions of the federal constitution. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Purpose of equal protection clause. —

The equal protection clause was designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that is often characterized in the most praiseworthy legislation. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Inherent and natural rights of all persons. —

This section affirms that all persons in the State of Alaska are granted certain inherent and natural rights. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Borough was not a “person” and therefore could not assert due process or equal protection claims against its creator, the state. The purpose of the Alaska due process and equal protection clauses is to protect people from abuses of government, not to protect political subdivisions of the state from the actions of other units of state government. Kenai Peninsula Borough v. State, Dep't of Cmty. & Reg'l Affairs, 751 P.2d 14 (Alaska 1988).

Boroughs are not entitled to equal protection under the Alaska Constitution. Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997).

Principle that all men are equal before the law. —

This constitutional guarantee of equal treatment, like the equal protection clause of the federal constitution, is the embodiment of the fundamental principle that all men are equal before the law. Leege v. Martin, 379 P.2d 447 (Alaska 1963); Nichols v. State, 425 P.2d 247 (Alaska 1967).

The guarantee of equal treatment under the law contained in the federal and state constitutions is the embodiment of the fundamental principle that all men are equal before the law. It is a prohibition against laws which, in their application, make unjust distinctions between persons. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Provision of benefits by state. —

State’s decision to provide benefits to people who choose to exercise a constitutional right does not invariably require it to provide equal benefits to those who decline to exercise the right. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

Broader protection than federal counterpart. —

Alaska’s equal protection and due process clauses confer broader protection than do their federal counterparts. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Analysis of equal protection claims under the federal constitution is, if anything, more forgiving than the approach that the Supreme Court of Alaska uses under the Equal Rights Clause of the Alaska Constitution; thus, where an ordinance, which exempted from taxation the first $10,000 of residential property used as the owner’s permanent place of residence, did not violate the state Equal Rights Clause, the federal Equal Protection Clause was also not violated. Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Analytic distinction between arguments under Alaska Const., art. VII, § 1 and equal protection arguments. See Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Alaska’s constitution has no privileges and immunities clause. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Standards applicable to privileges and immunities clause. —

Same standards applied to privileges and immunities clause as to equal protection clause. See Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

A discrimination between residents and nonresidents based solely on the object of assisting the one class over the other economically cannot be upheld under either the privileges and immunities or equal protection clauses. While the former applies to “citizens” and the latter to “persons,” both are aimed at preventing invidious discrimination. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

The supreme court is held to a standard of vigilance in the matter of the protection of an individual’s constitutional liberties. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Protection of personal liberty cannot be left to depend upon the will of the majority for those are antithetical concepts. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Freedom from disparate taxation is not a federally protected fundamental right for the purpose of equal protection analysis under the 14th amendment; therefore, the supreme court analyzed the tax law under the Alaska general standard of equal protection. Williams v. Zobel, 619 P.2d 422 (Alaska 1980).

Payment of taxes is “corresponding obligation”. —

One of the “corresponding obligations” of all persons to the people and the state is that of paying taxes should the legislature impose them. Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

Retroactive changes in Medicaid eligibility rules. —

The legislature’s retroactive change to Medicaid eligibility rules was valid and the application of the rules did not violate an applicant’s constitutional right to equal protection. Pfeifer v. State, 260 P.3d 1072 (Alaska 2011).

Provisions governing sale of alcoholic beverages. —

The differing penalty provisions of AS 04.16.200 , governing the sale of alcoholic beverages by unlicensed persons, do not violate equal protection, because the legislature can rationally decide to punish more severely the unauthorized sale of alcoholic beverages in communities that have affirmatively expressed their desire to prohibit the sale of alcohol through a local option election. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Mere errors of judgment of officials do not amount to unconstitutional discrimination, and the good faith of such officers will be presumed. Douglas v. Glacier State Tel. Co., 615 P.2d 580 (Alaska 1980).

Prerequisites for valid claims. —

For claims under Alaska Const., art. I, §§ 1 and 3 to be valid, there must be a showing of a link between the organization’s allegedly discriminatory conduct and the governmental involvement which is sufficiently strong to indicate that the state is, in effect, a joint participant in the challenged activity. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

“State action” is a necessary predicate to application of Alaska Const., art. I, §§ 1 and 3. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

Insufficient evidence to satisfy state action requirement. —

Evidence was insufficient to establish the requisite nexus between the conduct of the state and the Jaycees’ membership policies which exclude women as full members, and therefore the state action requirement was not satisfied. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

Standards of supreme court review. —

See State v. Ostrosky, 667 P.2d 1184 (Alaska 1983); Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264 (Alaska 1984).

Alaska Department of Revenue’s decision to grant a permit to a nonprofit organization’s operation of a free bicycle loan program that was supported by gaming proceeds survived rational basis scrutiny; rational basis was the appropriate level of scrutiny. Roberts v. State, 162 P.3d 1214 (Alaska 2007), cert. denied, 552 U.S. 1101, 128 S. Ct. 924, 169 L. Ed. 2d 732 (U.S. 2008).

Certain corporations considered “persons”. —

Corporations which have been granted permission to do business within a state are considered to be “persons” afforded protection under the equal protection clause. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

The term “liberty” is an illusive concept, incapable of definitive, comprehensive explication. Yet at the core of this concept is the notion of total personal immunity from governmental control: The right “to be let alone.” Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Court to enjoin offending administrative activity. —

When a court finds that an administrative agency is enforcing its regulations in a way which violates equal protection, it should enjoin the offending activity. Herrick's Aero-Auto-Aqua Repair Serv. v. State, DOT & Pub. Facilities, 754 P.2d 1111 (Alaska 1988).

Construction with AS 23.10.110 . —

Even where the legislature applied prospectively an amendment to AS 23.10.110 allowing a good faith defense to the award of liquidated damages, the distinction created between employers who failed to pay overtime before and after the effective date was not discriminatory, was based on a rational decision by the legislature, and was not a violation of equal protection rights. Henash v. Ipalook, 985 P.2d 442 (Alaska), cert. denied, 528 U.S. 964, 120 S. Ct. 399, 145 L. Ed. 2d 311 (U.S. 1999).

B.Equal Protection Tests

Laws making unjust distinctions. —

This section is a prohibition against laws which, in their application, make unjust distinctions between persons. Leege v. Martin, 379 P.2d 447 (Alaska 1963); In re Brewer, 430 P.2d 150 (Alaska 1967).

The guarantee of equality of treatment prohibits legislation which denies to one group of persons the enjoyment of certain rights which are afforded to another group, when, considering the purpose of the legislation, there is no reasonable basis for not treating both groups the same. Leege v. Martin, 379 P.2d 447 (Alaska 1963).

The requirements of equal protection amount to a prohibition of laws which, in their application, make unjust distinctions between persons. If a rational basis for a classification is reasonably apparent, there is no denial of equal protection. It is elementary that the power to define crimes and fix punishments rests in the legislature. In the performance of that function, that body is to use the discretion lodged in it, and not be confined by narrow or unduly restrictive limits. The supreme court cannot say that a legislative judgment was unreasonable if it bears a rational connection to a legitimate public purpose. So long as a legislative classification is not based upon an arbitrary or unjustifiable distinction and does not invidiously discriminate between two groups, there is no denial of equal protection. Alex v. State, 484 P.2d 677 (Alaska 1971).

Meaning of equal protection. —

The demands of equal protection do not require that there be perfect equality and uniformity. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Equal protection, even under Alaska’s stricter standard, does not demand perfection in classification. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

Equal protection does not mean that the entire field of governmental action be covered by one legislative enactment. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Equal protection means only that a rational basis for a classification reasonably may be conceived. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Because equal protection does not require the state to treat all individuals the same as it treats itself, the Alaska Victims’ Rights Act of 1991 is not vulnerable to a constitutional attack under Alaska’s equal protection clause. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

As to traditional rational basis test and its application. —

See Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

Growing dissatisfaction with equal protection tests. —

There is growing dissatisfaction with the two-tiered “rational basis” and “compelling state interest” tests, the use of each depending on whether or not the right sought to be regulated was fundamental in a constitutional sense or involved a suspect classification. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); State v. Erickson, 574 P.2d 1 (Alaska 1978).

Rational basis test as articulated in State v. Wylie. —

Under the rational basis test, as articulated in State v. Wylie , 516 P.2d 142 (Alaska 1973), in order for a classification to survive judicial scrutiny, the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977); State v. Erickson, 574 P.2d 1 (Alaska 1978); Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979); Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Application of rational basis test. —

The more flexible and more demanding rational basis test will be applied in future cases if the compelling state interest test is found inappropriate. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); State v. Erickson, 574 P.2d 1 (Alaska 1978); Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Under Alaska’s constitutional equal protection provisions, the supreme court has adopted a stricter “rational basis” equal protection test for those statutes not affecting fundamental rights. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Single test may be used in applying Alaska Constitution. —

In cases involving federal constitutional questions, where fundamental rights and suspect categories are at issue, the supreme court is bound by the “compelling state interest” standard unless that test is altered by the United States supreme court. In applying the Alaska Constitution, however, there is no reason why it cannot use a single test. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The supreme court applies a single test which is nevertheless flexible and dependent upon the importance of the rights involved. Based on the nature of the right, a greater or lesser burden is placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

In order for a classification to be valid under Alaska’s equal protection test, it must be reasonable, not arbitrary, and must bear a fair and substantial relation to a legitimate governmental objective, and depending on the importance of the individual’s interest involved, a greater or lesser burden will be placed on the state to show this fair and substantial relationship. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Cases applying compelling interest standard. —

See Breese v. Smith, 501 P.2d 159 (Alaska 1972); Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

The availability of less restrictive alternatives does not automatically invalidate a statute when fundamental rights are not involved. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Private versus commercial wharves on public land. —

Department of Natural Resources did not deny equal protection by compelling commercial landowners who constructed wharves to enter into lease agreements while imposing no similar requirement upon private landowners. Riparian landowners using state land to construct wharves for private use are not similarly situated to those using state land to construct wharves for commercial use, and the legislature expressed an intention that the DNR maximize the return on the leasing of state land. State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Inquiry in equal protection claims. —

The inquiry in claims that equal protection has been denied is whether there has been a deliberate and intentional plan to discriminate based on some unjustifiable or arbitrary classification. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979).

The supreme court must assess equal protection claims under the Alaska Constitution by considering the purpose of the statute, the legitimacy of that purpose, the means used to accomplish the legislative objective, and then determine whether the means chosen substantially further the goals of the enactment. It must also balance the state interest in the chosen means against the nature of the constitutional right which is at issue. Plas v. State, 598 P.2d 966 (Alaska 1979).

Regarding equal protection challenges under the state constitution, the supreme court must initially look to the purpose of the statute, viewing the legislation as a whole, and the circumstances surrounding it. It must be determined that this purpose is legitimate, that it falls within the police power of the state. Examining the means used to accomplish the legislative objectives and the reasons advanced therefore, the court must then determine whether the means chosen substantially further the goals of the enactment. Finally, the state interest in the chosen means must be balanced against the nature of the constitutional right involved. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

The State v. Erickson , 574 P.2d 1 (Alaska 1978), approach to state equal protection analysis is essentially one of balancing. On the one hand, the court must assess (1) the legitimacy of the state purpose purportedly furthered by the provision, and (2) the extent to which the relationship between the end (the asserted purpose) and the means (the classification chosen) is fair and substantial. On the other hand, the court is to determine the nature and the extent of the infringement of individual rights allegedly caused by the classification. Then the balance is struck. Williams v. Zobel, 619 P.2d 448 (Alaska 1980), rev'd, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Earlier version of AS 44.41.035(b) , which only required DNA samples from those convicted of felonies against a person, while at the same time not requiring DNA samples from people convicted of other equally serious felonies, did not violate equal protection requirements. Nason v. State, 102 P.3d 962 (Alaska Ct. App. 2004).

Minimum scrutiny review. —

Rape victim’s claim that the cap on noneconomic damages set forth in AS 09.17.010 violated her rights under this section was subject to minimum scrutiny review where restriction did not limit or block the victim’s right to access the courts and noneconomic damages did not provide for basic needs. C.J. v. Dep't of Corr., 151 P.3d 373 (Alaska 2006).

Allocation of law enforcement services. —

State of Alaska does not violate the equal protection rights of residents of “off-road” Native communities through its allocation of law enforcement services. While off-road communities receive fewer certified police officers, they are not situated similarly to the on-road communities; trooper allocation statutes and regulations are facially race-neutral and there is no intent to discriminate. Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005).

Applied in

Hanrahan v. City of Anchorage, 377 P.2d 381 (Alaska 1962); King v. Alaska State Hous. Auth., 512 P.2d 887 (Alaska 1973); Keith v. State, 612 P.2d 977 (Alaska 1980); Hemphill v. State, 673 P.2d 888 (Alaska Ct. App. 1983); Vienna v. Scott Wetzel Servs., 740 P.2d 447 (Alaska 1987); Area G Home & Landowners Org. v. Anchorage, 927 P.2d 728 (Alaska 1996).

Quoted in

Hoffman v. State, 404 P.2d 644 (Alaska 1965); Reeves v. State, 411 P.2d 212 (Alaska 1966); Roderick v. Sullivan, 528 P.2d 450 (Alaska 1974); Loomis Elec. Protection v. Schaefer, 549 P.2d 1341 (Alaska 1976); Sheley v. Alaska Bar Ass'n, 620 P.2d 640 (Alaska 1980); Pharr v. Fairbanks N. Star Borough, 638 P.2d 666 (Alaska 1981); Fermoyle v. State, 638 P.2d 1320 (Alaska Ct. App. 1982); Public Safety Employees Ass'n v. State, 658 P.2d 769 (Alaska 1983); Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256 (Alaska 1988); Luedtke v. Nabors Alaska Drilling, 768 P.2d 1123 (Alaska 1989); Kenai Peninsula Borough v. Cook Inlet Region, 807 P.2d 487 (Alaska 1991); Kenai Peninsula Borough v. Tyonek Native Corp., 807 P.2d 502 (Alaska 1991); Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992); Lawson v. Helmer, 77 P.3d 724 (Alaska 2003); Myers v. Alaska Psychiatric Inst., 138 P.3d 238 (Alaska 2006); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019); State v. Arctic Vill. Council, 495 P.3d 313 (Alaska 2021).

Cited in

Sedlock v. Sedlock, 1 Alaska L.J. No. 1, p. 11 (Jan. 1963); Thompson v. State, 496 P.2d 651 (Alaska 1972); Gray v. State, 525 P.2d 524 (Alaska 1974); Silides v. Thomas, 559 P.2d 80 (Alaska 1977); Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Hutcherson v. State, Dep't of Labor, 612 P.2d 1017 (Alaska 1980); Northern Adjusters, Inc. v. Dep't of Revenue, 627 P.2d 205 (Alaska 1981); Ketchikan Gateway Borough v. Breed, 639 P.2d 995 (Alaska 1981); D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Noll v. Alaska Bar Ass'n, 649 P.2d 241 (Alaska 1982); Kentopp v. Anchorage, 652 P.2d 453 (Alaska 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Koteles v. State, 660 P.2d 1199 (Alaska Ct. App. 1983); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); J.E.C. v. State, 681 P.2d 1358 (Alaska Ct. App. 1984); Adams v. Pipeliners Union 798, 699 P.2d 343 (Alaska 1985); Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986); McCutcheon v. State, 746 P.2d 461 (Alaska 1987); Gilbert v. Dept. of Fish & Game, Bd. of Fisheries, 803 P.2d 391 (Alaska 1990); Alaska Commercial Fisheries Entry Comm'n v. Russo, 833 P.2d 7 (Alaska 1992); Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997); Brady v. State, 965 P.2d 1 (Alaska 1998); Kellis v. Crites, 20 P.3d 1112 (Alaska 2001); Evans v. State, 56 P.3d 1046 (Alaska 2002); Pease v. State, 54 P.3d 316 (Alaska Ct. App. 2002); State v. Metcalfe, 110 P.3d 976 (Alaska 2005); Miller v. Safeway, Inc., 170 P.3d 655 (Alaska 2007); Squires v. Alaska Bd. of Architects, 205 P.3d 326 (Alaska 2009); Manning v. Dep't of Fish & Game, 355 P.3d 530 (Alaska 2015).

II.Application
A.In General

AS 09.10.055 , six-year statute of repose on suits against design professionals, violates equal protection clause of the Alaska Constitution because the statute bears no substantial relationship between exempting design professionals from liability, and shifting liability for defective design and construction to owners and material suppliers, and the goal of encouraging construction. Turner Constr. Co. v. Scales, 752 P.2d 467 (Alaska 1988).

AS 09.60.060 , which requires an out-of-state plaintiff to post a bond for anticipated costs and attorney fees as a condition of maintaining suit in an Alaska court violates equal protection of law under the Alaska constitution because it unreasonably restricts nonresident access to Alaska courts. Patrick v. Lynden Transp., 765 P.2d 1375 (Alaska 1988).

Licenses. —

It is not a violation of equal protection to deny license renewals to those convicted of violating state, but not federal, hunting and guiding statutes, since those who are convicted of violating state laws have committed a different crime from those convicted of parallel federal offenses. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

The municipality of Anchorage’s exclusion of the Alaska Gay Coalition from the 1976-77 “Anchorage Blue Book,” a government publication, denied that organization its constitutional rights to freedom of speech and association and equal protection of the law. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Anchorage Blue Book,” a municipality publication intended to provide a vehicle for the dissemination of information regarding public and private services and organizations in the Anchorage area, was a public forum to which the Gay Coalition had a right of equal access. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Blue Book” was designed for and dedicated to expressive and associational use and therefore, once it was opened for such use, the government could not deny appellant access to it based solely on the content of its beliefs. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forum doctrine stated. —

Once there exists a government-controlled forum for the dissemination of information and expression of ideas, the government cannot deny equal access to that forum based on content alone. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forums are not designated such because they are designed to provide a vehicle for partisan expression; rather, they are so called because they are appropriate arenas for people to exercise their constitutional rights of expression and association. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Regulation, not censorship, allowed. —

While the government may reasonably regulate expressive activity, it may not censor such activity. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Validity of distinguishing residential from recreational users. —

Disparate treatment of residential and recreational users in the context of granting preference rights under AS 38.05.035 does not violate equal protection guarantees. Reichmann v. State, Dep't of Nat. Res., 917 P.2d 1197 (Alaska 1996).

Provision of the 1972 amendment to former AS 42.10.130(d) limiting the grant of expanded intrastate routes to carriers according to residency violated the equal protection clauses of the United States and Alaska constitutions. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

Benefiting economic interests of residents over nonresidents is not a purpose which may constitutionally vindicate discriminating legislation, and, accordingly, the granting of extended routes based on residency is not rationally justified. Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975).

Distinction between negligent and willful violators. —

AS 46.03.760 and 46.03.790 do not constitute an unreasonable classification whereby negligent violators of the provisions of the Alaska Environmental Conservation Act (AS 46.03) may be punished by a $25,000 fine (now $500 — $100,000 for initial violation and up to $10,000 for each day the violation continues) while willful violators may receive a $1000 fine (now $10,000 for each separate violation) only. Stock v. State, 526 P.2d 3 (Alaska 1974).

Construing former AS 47.40.040 to preclude retroactive cost settling. —

Construing former AS 47.40.040 , which provided the method of determining the “full cost” of services purchased by the Department of Health and Social Services for persons for whom the state had assumed responsibility, to preclude retroactive cost settling did not deny a party providing such services due process or equal protection of the laws. Alaska Children's Servs. v. Williamson, 606 P.2d 786 (Alaska 1980).

Compensation for personal property taken or damaged by public use. —

Reading this section and § 18 of this article in pari materia, and the generally recognized principle that the constitution and legislative enactments in implementation thereof are to be liberally construed, the supreme court found no clear legislative intent to have been manifested that personal property taken or damaged by public use should not be justly compensated. Stroh v. Alaska State Hous. Auth., 459 P.2d 480 (Alaska 1968).

Compensation requirements for natural disaster. —

Before there could be a finding of a denial of equal protection, it would have to appear that the difference in application of the Alaska Mortgage Adjustment Program between those homeowners covered by it and those excluded from its coverage was the result of a deliberate and intentional plan to discriminate against the latter, or was based upon some unjustifiable or arbitrary classification. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Appeal from land use decision. —

Definition of an aggrieved person in Homer, Alaska, City Code as one who is adversely affected by a land-use decision does not conflict with AS 29.40.050 or AS 29.40.060 . Moreover, the city clerk’s rejection, pursuant to these ordinances, of a notice of appeal submitted by an objector who did not meet the definition of an aggrieved person did not violate the objector’s due process and equal protection rights. Griswold v. City of Homer, 252 P.3d 1020 (Alaska 2011).

Home rule city may prohibit dual position-holding. —

A home rule city may prohibit dual position-holding consistent with equal protection and the right of franchise when the prohibition is narrowly drawn to serve compelling governmental interests. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Home rule charter section which prohibited a person who holds or has held an elective city office from being eligible for appointment to an office or for employment for which a salary is paid by the city until one year has elapsed following the term for which he was elected or appointed, unless an exception is made with the approval of four or more members of the city council, did not violate the Alaska equal protection clause by singling out city employees for a deprivation of fundamental political rights by requiring them to resign their employment prior to assuming a seat on the city council, since the charter section served compelling governmental interests and the means-end relationship between the charter section and those interests was correspondingly close. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Municipal immunity. —

AS 09.65.070(d)(1) , which confers immunity to municipalities for liability arising from safety inspections of private property, does not violate the equal protection clause of the Alaska constitution. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Favored treatment given estates of deceased workers leaving dependents upheld. —

An action for wrongful death, filed pursuant to AS 09.55.580 , is barred by AS 23.30.055 ; the fact that the estates of deceased workers leaving dependents are entitled to favored treatment over the estates of workers leaving no dependents reflects a legislative determination that the former require greater compensation, is entirely reasonable, and does not deprive the estate of a worker leaving no dependents of equal protection of the law. Taylor v. Southeast-Harrison W. Corp., 694 P.2d 1160 (Alaska 1985).

Rape victim’s equal protection rights not violated by cap on noneconomic damages. —

Cap on noneconomic damages set forth in AS 09.17.010 did not violate a rape victim’s equal protection rights where the legislature had apparently concluded that large noneconomic damages awards were susceptible to overestimates of the dollar value of a victim’s noneconomic loss, and the legislature could have reasonably concluded that any alternative method of lowering insurance costs would have been less fair than a cap on noneconomic damages. C.J. v. Dep't of Corr., 151 P.3d 373 (Alaska 2006).

Application to abortion initiative. —

Alaska Const. art. I, § 1 does not obligate the State of Alaska to prohibit all abortions because (1) the U.S. Supreme Court has held ‘person,’ as used in the Fourteenth Amendment, does not include the unborn, so, even if a state had a constitutional duty to protect all persons’ natural right to life, that duty does not extend to the unborn; (2) the Alaska Constitution cannot guarantee the unborn limitless protections that would broadly ban abortions, in violation of the U.S. Supreme Court’s decision in Roe v. Wade. Desjarlais v. State, 300 P.3d 900 (Alaska 2013).

Local land sale lottery ordinance was unconstitutional insofar as it required participants to have been residents of the borough for one year preceding their applications and to the extent that it granted a five percent reduction in the sale price of a parcel for each year of residency in the borough, up to a maximum reduction of 50 percent. Gilman v. Martin, 662 P.2d 120 (Alaska 1983).

Provision of an ordinance regulating physical culture studios and massage parlors to prohibit intentional display or touching of genitals was not a violation of equal protection; although employees of bars and nightclubs are permitted to expose their genitals, there is a reasonable relation between the objective of controlling prostitution and prohibiting exposure or touching of genitals. The distinction between massage parlors and physical culture studios on the one hand, and other businesses where employees are allowed to expose their genitals, has a fair and substantial relationship to the purpose of the ordinance. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Provision of an ordinance regulating physical culture studios and massage parlors which required closure from 2 a.m. to 6 a.m. did not violate appellants’ right to equal protection on the ground that other businesses in the proximity were allowed to remain open all night since the massage parlors were generally found in more residential areas and presented distinct problems through flashing neon signs, increased noise and traffic, and there was testimony that substantial prostitution activities occurred during the period of 2 a.m. to 6 a.m. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Operation of Alaska Public Utilities Commission. —

The Alaska Public Utilities Commission’s failure to adopt cost allocation regulations did not violate the Trans-Alaska pipeline owners’ right to due process under the United States or Alaska Constitutions. Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711 P.2d 1170 (Alaska 1986).

Classification of medical malpractice defendants. —

As the classification between negligent doctors and other tort defendants in AS 09.55.548(b) , allowing reduction of medical expenses paid by prevailing malpractice plaintiff’s insurer from the jury’s medical expenses award, bears a fair and substantial relation to attainment of the legitimate government objective of lowering the cost of such actions, it does not violate equal protection rights. Reid v. Williams, 964 P.2d 453 (Alaska 1998).

Medicaid assistance. —

The Department of Health and Social Services’ regulation which selectively denied Medicaid assistance to poor women who medically required abortions violated Alaska’s constitutional guarantee of equal protection. Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001).

Health care facility certification requirements. —

AS 18.07.111 does not violate equal protection under Alaska Const. art. I, § 1 because it does not treat similarly situated entities differently; it does not distinguish between radiologists and other specialists in defining health care facilities that are required to obtain a certificate of need. Bridges v. Banner Health, 201 P.3d 484 (Alaska 2008), modified, — P.3d — (Alaska 2009) (memorandum decision).

Child custody. —

There was no evidence of a deliberate plan to discriminate against the mother on some unjustifiable basis or arbitrary classification and there was no basis to reverse any of the trial court’s rulings on equal protection grounds regarding the support, allocation of the federal tax exemption for a child, and visitation as between the parents. Skinner v. Hagberg, 183 P.3d 486 (Alaska 2008).

Alaska Statutes 44.21.410 did not violate the father's equal protection rights because the differences between parents facing opposing parties represented by counsel provided by a public agency and those represented by private counsel justified their differential treatment. Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Denial of death benefits to unmarried cohabitant. —

Unmarried cohabitant who was not eligible for death benefits after the work-related death of her long-term partner was not deprived of her constitutional rights; because the act’s spousal death benefit provision bore a close and substantial relationship to furthering a legitimate state interest, it did not violate her constitutional right to equal protection. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

B.Attorneys

Rule governing awards of attorney’s fees. —

Civil R. 82, under which awards of attorney’s fees to defendants were made, did not violate the due process and equal protection clauses of the state and federal constitutions, insofar as it allowed attorney’s fees to be awarded against plaintiffs who litigated good-faith claims, since such argument completely ignored the financial burden that such plaintiffs imposed upon those who were forced to defend against such actions in equal good-faith. Stepanov v. Gavrilovich, 594 P.2d 30 (Alaska 1979).

A court may impose minimum standards of dress for the attorneys who appear before it. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

While a court cannot adopt a dress code for attorneys who appear before it which is unduly rigid or which attempts to dictate matters of taste and esthetic preference, the requirement of merely wearing a coat and tie is a reasonable one. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

Disciplining of attorney by supreme court. —

The exercise by the supreme court of the power to discipline an attorney does not contravene any of the provisions of either the federal or state constitution. In re Mackay, 416 P.2d 823 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S. Ct. 1907, 16 L. Ed. 2d 1016 (U.S. 1966).

Alaska Bar Association bylaw classifying members who may apply for inactive membership did not violate this section. In re Moody, 524 P.2d 1261 (Alaska 1974).

New standards for admission to bar need not be retrospective. —

When the legislature adopts new standards for admission to the bar, it is not obliged by the requirements of equal protection of the laws to make its legislation retrospective so as to encompass situations which existed prior to the time the legislation becomes effective. To make the legislation prospective in operation only satisfies constitutional requirements of equal protection so long as the law in operating prospectively does not invidiously discriminate between different classes of persons. In re Brewer, 430 P.2d 150 (Alaska 1967).

Regrading procedures on bar examination. —

Regrading of the California essay portion of the Alaska Bar Exam by Alaska graders, where California graders gave an overall score of 65 — 70 percent, constitutes a reasonable procedure even though no similar regrading procedure exists for Alaska essays; the procedure is consistent with the Board of Governors of the Alaska Bar Association’s broad grant of authority to examine and grade applicants for admission to the Alaska Bar, and satisfies the requirements of equal protection. In re Butterfield, 581 P.2d 1109 (Alaska 1978).

Graduation from ABA-approved law school. —

Alaska Bar Rule 2, § 1(b) does not deny equal protection of the laws, since the setting of minimum standards for the practice of law is the overall purpose of the rule, and the requirement of graduation from an American Bar Association-approved law school does bear a fair and substantial relation to that purpose. In re Urie, 617 P.2d 505 (Alaska 1980).

The irrebuttable presumption doctrine is of questionable vitality in determining whether Alaska Bar Rule 2, § 1(b), which requires that a bar applicant be a graduate of an American Bar Association-accredited law school, violates this section, and any matters to which the doctrine can be applied can be analyzed just as readily by using the flexible equal protection analysis which the supreme court employed in Isakson v. Rickey , 550 P.2d 359 (Alaska 1976), and State v. Erickson , 574 P.2d 1 (Alaska 1978), since any legislative classification creates a conclusive presumption of some sort with respect to excluded classes. In re Urie, 617 P.2d 505 (Alaska 1980).

C.Criminal Matters

Provisions restricting possession of concealable firearms by former felons. —

The affirmative defenses set out in AS 11.61.200(b) to the charge of misconduct involving weapons in the first degree are not violative of equal protection, as that section is a reasonable and rational attempt to protect the public from former felons possessing concealable firearms. McCracken v. State, 743 P.2d 382 (Alaska Ct. App. 1987).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), discussing in depth the history of the insanity defense in Alaska.

Constitutionality of bringing charge under more specific section. —

There was no equal protection or due process violation in charging defendant with delivery on the basis of evidence of an attempt to deliver since the more specific statute on delivery of cocaine controls over the general attempt statute and therefore only one punishment applied. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Failure to timely raise an equal protection argument in a criminal case constitutes a waiver of that argument and the court of appeals will not consider it. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

When the elements of one crime overlap with the elements of another crime, or when the elements of one offense encompass the elements of a lesser included offense, some discretion inevitably accrues to the prosecutor, who may tailor the charge to fit the offense, and so long as the elements necessary to prove either of two offenses are not identical, courts have upheld the statutes and allowed the prosecutor charging flexibility. Bell v. State, 598 P.2d 908 (Alaska 1979).

The mere fact that a particular defendant could have been charged with either a felony or misdemeanor does not violate equal protection, so long as the elements necessary to prove the felony and the misdemeanor are different. Holton v. State, 602 P.2d 1228 (Alaska 1979).

The misdemeanor and felony provisions contained in the former joyriding statute, AS 28.35.010(a) [see now AS 11.46.484 ], did not punish the same criminal conduct, since a felony violation under former AS 28.35.010(a) required the state to prove something more than a misdemeanor violation: the prosecution had to show that the offender had been at least twice convicted of misdemeanor joyriding. Therefore, the fact that the prosecutor had the discretion to proceed against a third-time offender as either a felon or a misdemeanant did not amount to a violation of equal protection, as the prosecutor’s discretion could be exercised only in accordance with the legislative mandate requiring the state to prove that the offender was deserving of more severe punishment because of his multiple offenses. Bell v. State, 598 P.2d 908 (Alaska 1979).

Although a former statute made contributing to the delinquency of a child both a misdemeanor and a felony, there was no denial of equal protection where the elements of proof for a misdemeanor conviction were not the same as the elements of proof for a felony conviction. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Statute prohibiting soliciting or procuring for purpose of prostitution was violative of this section and § 3 of this article, insofar as it limited its operation to selling only a female body. Plas v. State, 598 P.2d 966 (Alaska 1979).

Domestic assault accused precluded from return to family residence. —

AS 12.30.027(b) is unconstitutional in that it deprives an important liberty interest of a husband, accused of assaulting his wife and still awaiting trial after more than two years, by prohibiting his return to the family residence. Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Use of a prior criminal conviction to impeach a defendant’s credibility does not deny him equal protection of the law, does not violate the privilege against self-incrimination, and does not deprive him of a fair and impartial jury. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Prior convictions for presumptive sentencing purposes. —

Interpretation of AS 12.55.145(a)(3) to require that, when an offender is simultaneously convicted of multiple felonies arising out of separate criminal episodes and thereafter commits a new felony, each prior felony must count as a prior conviction for presumptive sentencing purposes does not violate equal protection under the Alaska Constitution. Anderson v. State, 904 P.2d 433 (Alaska Ct. App. 1995).

Cross-examination as to work as prostitute and use of drugs. —

Defendants were not denied due process or equal protection where, in prosecution for possession of heroin, the judge allowed cross-examination of the defendants on whether one of the defendants worked as a prostitute and whether she used drugs and on the other defendant’s alleged illegal earnings, since a napkin containing heroin and police officers’ testimony about the events surrounding the arrests were the basis of defendants’ convictions. Moreau v. State, 588 P.2d 275 (Alaska 1978).

An order requiring an attorney to represent a criminal defendant did not deny him equal protection of the law. Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), overruled, De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Level of representation. —

The equal protection clause does not entitle an indigent defendant to a level of representation commensurate with that provided by the public defender agency and exceeding the constitutional level of competency. Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983).

Protection afforded insanity acquittee. —

Equal protection has been interpreted to require that an insanity acquittee receive essentially the same protection afforded to a person who is civilly committed by reason of insanity, except where there are good reasons for different treatment. State v. Alto, 589 P.2d 402 (Alaska 1979).

Equal protection does not require the same standard of proof and the same burden of proof in cases where there has been an acquittal by reason of insanity as in cases where there has been a civil commitment. State v. Alto, 589 P.2d 402 (Alaska 1979).

Rights of indigent on motion to vacate or set aside sentence. —

Where there is a hearing on an indigent prisoner’s first application to vacate or set aside sentence, such prisoner has the right to have counsel appointed by the court to represent him at such hearing. Nichols v. State, 425 P.2d 247 (Alaska 1967).

The imposition of financial barriers restricting the completeness of a hearing of a motion to vacate sentence of a criminal defendant has no place in the heritage of equal justice under law. Nichols v. State, 425 P.2d 247 (Alaska 1967).

Punishment for crime need not be strictly proportioned to the offense. Green v. State, 390 P.2d 433 (Alaska 1964).

The penalty provision of former AS 11.15.030 did not deprive a defendant of the equal protection of the law, for under that statute all persons convicted of second-degree murder were subject to the same minimum penalty. Green v. State, 390 P.2d 433 (Alaska 1964).

Constitutionality of bail statute. —

AS 12.30.040 does not deny substantive due process or equal protection rights by providing that if a person has been convicted of an unclassified or class A felony, the person may not be released on bail either before sentencing or pending appeal since there is a legitimate basis for the legislative classification. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Although a careful limitation on bail to dangerous convicted persons was rationally related to the legislative purposes contained in AS 12.30.040 of continued appearance and community protection, the selective means instituted by the legislature was not connected with such goals and therefore AS 12.30.040 (b), to the extent that prior to the 1982 amendment it distinguished between violent and dangerous offenders similarly situated, violated this section as well as the equal protection clause of the 14th amendment of the United States Constitution.Griffith v. State, 641 P.2d 228 (Alaska Ct. App. 1982).

Sex offenders. —

The defendant’s equal protection claim failed where he failed to identify any group similarly situated to convicted sex offenders, or argue that convicted sex offenders were treated differently from any such group. Patterson v. State, 985 P.2d 1007 (Alaska Ct. App. 1999), overruled in part, Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Use of hearsay in cases involving crimes against children. —

A statutory classification which permits hearsay from child declarants to be presented to grand juries in sexual abuse cases, but implicitly rejects the use of hearsay in other cases involving crimes against children, does not violate equal protection. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Former AS 11.30.090 did not deny equal protection of the law under either the federal or state constitution. Alex v. State, 484 P.2d 677 (Alaska 1971).

Under former AS 11.30.090, it was a felony for a felon to escape, while it was a misdemeanor for a misdemeanant to escape. This did not amount to an unconstitutionally arbitrary discrimination which bears no reasonable relation to the circumstances of the escape itself. Alex v. State, 484 P.2d 677 (Alaska 1971).

Under former AS 11.30.090, the crime of escape was divided into two classes on the basis of the felony or misdemeanor classification of the crime for which a person was initially incarcerated. All those within each class were subject to identical treatment. Under each class the punishment to be received was not arbitrarily or mandatorily fixed. Rather, the sentencing judge was given a range of discretion to be used in dealing with each offender. Alex v. State, 484 P.2d 677 (Alaska 1971).

It was true that under former AS 11.30.090 the character and nature of an escape were not necessarily the basis upon which the crime is defined and the punishment fixed. However, the nature and method of an escape might well be considered by the judge when he exercised his discretion under the sentencing provisions. Moreover, there was no constitutional necessity for the designation of the crime and the extent of the punishment to be based solely or even in part on the nature of the escape. Alex v. State, 484 P.2d 677 (Alaska 1971).

Former AS 11.71.060 did not deny equal protection of the law. —

Former AS 11.71.060(a)(3) , which established 19 years as the age of majority for the purpose of regulating the possession of marijuana, did not violate the Alaska Constitution’s equal protection guarantee. Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).

Equal protection as applied to state and federal prisoners. —

Where prisoners alleged that their confinement in institutions operated by the Federal Bureau of Prisons (FBOP) was unconstitutional because FBOP conditions were unequal to conditions in institutions operated by the State of Alaska, resolution of their equal protection claims against the State and the FBOP by entering into a settlement agreement did not prevent the transfer of an Alaska prisoner to a non-FBOP facility in Arizona. Cleary v. Smith, 146 P.3d 997 (Alaska 2006), cert. denied, 549 U.S. 1346, 127 S. Ct. 2042, 167 L. Ed. 2d 777 (U.S. 2007).

Greater penalty for escape for felon. —

AS 11.56.310(a)(1)(B) does not violate equal protection even though it provides a greater punishment for a predetention escape from custody by one charged with a felony than one charged with a misdemeanor, since the legislature could reasonably conclude that in such situations a greater potential sentence is needed for deterrence. Maynard v. State, 652 P.2d 489 (Alaska Ct. App. 1982).

Where two felony statutes overlap and provide disparate penalties, conviction of greater felony does not violate the Alaska or federal constitutions. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), reserving decision on the question of a felony statute and misdemeanor statute prescribing exactly the same conduct under the same circumstances.

Conviction of manslaughter rather than criminally negligent homicide. —

Equal protection was not violated by convicting defendant of manslaughter rather than for criminally negligent homicide since there is significant difference in mental state involved. Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985).

AS 12.55.110 would be repugnant to the equal protection clause of both the federal and Alaska constitutions if it were construed as embodying an intended dichotomy between indigent probationers and those who could afford counsel. Alex v. State, 484 P.2d 677 (Alaska 1971).

Hearing on jury communication to judge. —

Where the bailiff failed to deliver a jury deadlock note to the trial judge the judge was precluded from conducting proceedings on the record in defendant’s presence in violation of defendant’s right to due process. Wamser v. State, 652 P.2d 98 (Alaska 1982).

Because defendant did not give up the right to be represented by counsel, defendant's limited co-counsel status—to cross-examine witnesses and to deliver additional closing argument—did not affect defendant's constitutional right to have defendant's attorney present at a hearing when substantive matters about the jury's deadlock were discussed. Defense counsel's decision to be out of contact for less than an hour, with the trial court's tacit approval, was not an invitation to the court to hold proceedings without the attorney. Cunningham v. State, 408 P.3d 1238 (Alaska Ct. App. 2017).

Former AS 33.15.190 was unconstitutional. —

Former AS 33.15.190, which made a parolee subject to the disabilities imposed on prisoners by former AS 11.05.070 , denied parolees the “equal protection of the laws,” in violation of the Alaska and United States constitutions. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Former AS 11.05.070 and former AS 33.15.190 combined to deny a parolee the right to initiate civil suit; such denial of access to the civil courts was a violation of due process and equal protection provisions of the Alaska and United States constitutions. State v. McCracken, 520 P.2d 787 (Alaska 1973).

The state interest in denying parolees the right of access to the civil courts possessed by other persons satisfies neither the “compelling state interest” test applied when a “fundamental right” is at stake, nor the traditional, more lenient “rational basis” test otherwise applicable. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Although the state has a legitimate interest in restricting some activities of parolees, prohibiting a parolee from initiating civil actions has no logical connection with such an interest. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Requiring appeal to court of appeals. —

Requiring that an attorney sanctioned in criminal proceedings first present an appeal to the court of appeals, rather than the supreme court, does not deny him equal protection of the law. Weidner v. State, 764 P.2d 717 (Alaska Ct. App. 1988), cert. denied, 493 U.S. 1019, 110 S. Ct. 717, 107 L. Ed. 2d 737 (U.S. 1990).

Different fees between indigent prisoners and non-prisoners. —

The provisions of AS 09.19.010 , governing filing fees that prisoners must pay to commence litigation against the state, do not violate equal protection, since the legislature had a rational basis for drawing a distinction between indigent prisoners and indigent non-prisoners. George v. State, 944 P.2d 1181 (Alaska Ct. App. 1997).

Statute restricting drug possession in prison. —

The prison contraband statute, AS 11.56.375 , does not violate the equal protection clauses of the United States and Alaska Constitutions, in view of the fact that an inmate’s right to privacy is substantially limited and does not extend to protect the right to possess marijuana in a correctional institution. Cleland v. State, 759 P.2d 553 (Alaska Ct. App. 1988).

Denying mentally ill defendant releases on parole. —

The provision in AS 12.47.050 which denies a defendant the opportunity for furloughs or releases on parole so long as he is mentally ill and a danger to the public does not violate his right to equal protection of the laws. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Charge to grand jury. —

Defendant’s equal protection and due process rights were not violated by a charge given to the grand jury, where the jury was left with the understanding that it should not return an indictment unless it was satisfied that the evidence presented, if unexplained or uncontradicted, established a probability of defendant’s guilt and would therefore warrant, i.e., justify, holding him for trial. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

Juror bias. —

Appellant's equal protection argument based on the new Peña-Rodriguez rule had already been implicitly rejected in his prior appeal where the type of juror bias he claimed he suffered in his criminal trial was not the same as the racially motivated juror bias that resulted in the Peña-Rodriguez exception. Thus, appellant was not entitled under the Alaska equal protection clause to set aside the 2001 dismissal of his postconviction relief application. Larson v. State, — P.3d — (Alaska Ct. App. July 31, 2019), cert. denied, — U.S. —, 141 S. Ct. 120, 207 L. Ed. 2d 1057 (U.S. 2020).

Mandatory parolees denied in-person board appearance. —

Mandatory parolees are not denied equal protection of the laws because they are not permitted to appear before the parole board prior to their release while discretionary parolees are granted the right of an in-person appearance; the purpose of the parole hearing under AS 33.16.130 is to allow the discretionary parolee an opportunity to persuade the board that the parolee should be released on parole, whereas the mandatory parolee must be released on parole at the end of the sentence less time deducted for good conduct. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Statute regarding amenability of juvenile to treatment. —

Where a minor is prosecuted as an adult for one of the felonies listed in AS 47.12.030(a) but is ultimately found guilty of a lesser offense, the provision imposing on the minor the burden of proving that he or she is amenable to treatment as a juvenile does not violate equal protection. State v. Ladd, 951 P.2d 1220 (Alaska Ct. App. 1998).

Mandatory use of seatbelt. —

Alaska’s seatbelt law, AS 28.05.095(a) , does not infringe upon the rights of personal liberty, autonomy, and privacy guaranteed by this provision and Alaska Const. art. I, §§ 22 and 14, as the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

D.Drugs and Alcohol

Legislative controls to public health. —

The legislature need not apply equal controls to equal threats to the public health. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Assuming some degree of control of marijuana use is permissible, it does not follow that the political obstacles to placing controls on alcohol and tobacco should render the legislature unable to regulate other substances equally or less harmful. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Cocaine is not unconstitutionally classified as a narcotic drug by Alaska statute. Johnson v. State, 577 P.2d 230 (Alaska 1978).

The classification of cocaine with narcotics is not violative of equal protection or due process. State v. Erickson, 574 P.2d 1 (Alaska 1978).

There is ample, respectable scientific evidence of harm or potential harm from the use of cocaine to sustain the legislature’s inclusion of cocaine in its classification of narcotics under the provisions of former AS 17.10 [see now AS 11.71 and AS 17.30], rather than AS 17.12. Thus, the legislative goal is legitimate, and the classification at issue is substantially related to that goal. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The legislature specifically intended to regulate the use and possession of cocaine, regardless of its particular pharmacological status, and the purpose of former AS 17.10 is to regulate drugs that have a potential for harm to health and welfare. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The inclusion of cocaine with opiates bears a fair and substantial relationship to what the supreme court has determined to be the legislative purpose. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Former classification of marijuana. —

The drugs with which marijuana was grouped in former AS 17.12.150(3) were not so different from marijuana that yet another classification had to be set up for marijuana alone. Ravin v. State, 537 P.2d 494 (Alaska 1975).

That marijuana was the least harmful of the drugs covered by former AS 17.12.150(3), alone, was not sufficient to make the classification of marijuana with the other drugs covered by former AS 17.12.150(3) irrational. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Negligence standard for liquor sellers. —

The Dram Shop Act’s requirement (AS 04.21.020 ) that tort claimants prove criminal negligence against liquor sellers, rather than just mere negligence, does not violate the equal protection clause. Gonzales v. Safeway Stores, 882 P.2d 389 (Alaska 1994).

Local option laws. —

Provisions of the local option law do not violate equal protection merely because they give individual communities the discretion to determine the level of alcohol availability that will be permitted within their boundaries, or because the penalties for violating the provisions are based upon quantity and type of alcoholic beverage. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

Given the state’s compelling interest in curbing alcohol abuse, the provisions of the local option law are reasonable and sufficiently related to the legislative goal of protecting the public health and welfare so that they do not violate this section; equal protection does not require perfect equality and uniformity in the application of a regulatory scheme. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

The legislature may constitutionally treat local option communities under former AS 04.11.496 differently from other communities because the difference in treatment results from an election that all communities are equally free to make, and this section does not violate equal protection. Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992).

Differing probation standards for offenders of different ages held proper. —

Although this provision requires that similarly situated individuals be treated equally, AS 04.16.050(a) and (e) do not violate equal protection by requiring younger offenders to stay on probation longer than older offenders; the state’s interest in preventing underage drinking is sufficiently strong, the importance of the minor defendants’ interest was relatively low, and the challenged probation provision has a substantial relationship to the social policy of preventing underage drinking. State v. Morgan, 111 P.3d 360 (Alaska Ct. App. 2005).

Revocation of driver’s licenses. —

The claim that a reading of former AS 28.15.210 [see now AS 28.15.181 ], which authorized mandatory revocation of driver’s licenses and afforded different treatment to second and subsequent drunk driving offenders compared to all other offenders, violated the equal protection clause was frivolous. State v. Guarderas, 589 P.2d 870 (Alaska 1979).

Former AS 25.27.246 , providing for suspension of delinquent child support obligors’ driver’s licenses, would be unconstitutional as applied, in violation of Alaska’s equal protection clause, if used to revoke the license of an individual incapable of paying the demanded support; the Child Support Enforcement Division (now the Child Support Services Agency) may not require, in payment-schedule negotiations, payments beyond the “best efforts” of the obligor. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Denial of license renewal. —

Where a plaintiff failed to offer any evidence of discriminatory intent or evidence to show that she was treated differently from other license holders who had violated the 30-day operating requirement, her mere conclusory accusations of a violation of equal protection were insufficient. Rollins v. Department of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202 (Alaska 1999).

Refusal to take breathalyzer test. —

Punishing a refusal to take a breathalyzer test bears a fair and substantial relation to the legitimate governmental objective of gathering evidence of possible drunken driving and does not deny equal protection. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

A statute or ordinance penalizing refusal to submit to a breathalyzer test does not violate Alaska Const., art. I. Burnett v. Municipality of Anchorage, 678 P.2d 1364 (Alaska Ct. App.), cert. denied, 469 U.S. 859, 105 S. Ct. 190, 83 L. Ed. 2d 123 (U.S. 1984); McCracken v. State, 685 P.2d 1275 (Alaska Ct. App. 1984).

Dismissal of police officer for destroying possible incriminating evidence. —

Dismissal of police officer for erasing a portion of a videotape containing material that could have been construed as evidence that he used excessive force against a person arrested for operating a motor vehicle while intoxicated did not violate equal protection; although other officers have not been dismissed for allegedly similar conduct, while it may be true that other officers have destroyed evidence they incorrectly believed no longer had any evidentiary value, the police officer in this case did not erase the tape merely because he believed it had no evidentiary value, but instead because he believed that it did have some evidentiary value against him. Kott v. City of Fairbanks, 661 P.2d 177 (Alaska 1983).

E.Durational Residency Requirements

Durational residence requirements are subject to strict scrutiny under the equal protection clauses of the federal and state constitutions because they penalize those who have exercised their fundamental right of interstate migration. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Infringement on right of interstate travel. —

All durational residency requirements inherently infringe upon the fundamental constitutional right of interstate travel. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Compelling state interest test. —

All such requirements are prima facie invalid and will be countenanced only when they serve a compelling state interest. State v. Adams, 522 P.2d 1125 (Alaska 1974), but see Williams v. Zobel, 619 P.2d 422 (Alaska 1980).

All durational residency requirements are to be measured by the compelling state interest test. State v. Adams, 522 P.2d 1125 (Alaska 1974), but see Williams v. Zobel, 619 P.2d 422 (Alaska 1980).

There need not be an actual deterrence to migration between the states to actuate the compelling interest test. State v. Wylie, 516 P.2d 142 (Alaska 1973); State v. Adams, 522 P.2d 1125 (Alaska 1974).

The compelling interest standard is not satisfied by urgent fiscal need. State v. Wylie, 516 P.2d 142 (Alaska 1973).

United States supreme court decisions dealing with durational residency requirements. —

See State v. Adams, 522 P.2d 1125 (Alaska 1974).

Requirement of year’s residence before nonresident could seek divorce. —

Former AS 09.55.140, which required one year’s residence before a nonresident could seek a divorce, violated the equal protection clauses of the Alaska and United States Constitutions. State v. Adams, 522 P.2d 1125 (Alaska 1974).

When scrutinized under the compelling state interest test, former AS 09.55.140 could not be sustained upon the basis of the state’s interest in protecting the basic family unit or in assuring the validity of its divorce decrees. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Even if the underlying purpose of former AS 09.55.140 had been to further the important state interests of preserving the marital relationship and of guaranteeing the welfare of the affected children, the durational residency requirement was not tailored with sufficient precision to accomplish these goals without unnecessarily infringing upon fundamental constitutional rights. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Domicile is adequate minimum contact. —

The United States supreme court has held that domicile on the part of a divorce-complainant is an adequate minimum contact to satisfy the due process clause and entitle a divorce decree to full faith and credit under the United States Constitution. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Subjective test for domicile preferred. —

A subjective test for domicile, i.e., examination of the proponent’s actual state of mind, thus appears to be a reasonable, less restrictive alternative to the objective test, such as a durational residency requirement, which does not infringe upon or penalize the fundamental constitutional right of interstate travel. State v. Adams, 522 P.2d 1125 (Alaska 1974).

There is no concrete evidence that a subjective test would produce any less respect for the state’s divorce decrees or would encourage fraudulent allegations of domicile. State v. Adams, 522 P.2d 1125 (Alaska 1974).

Discussion of decisions relating to durational residency requirements in foreign divorce statutes. —

See State v. Adams, 522 P.2d 1125 (Alaska 1974).

Durational residence preference for state employment. —

The durational residence hiring preference of one year embodied in Alaska Personnel Rules 1, 309.0 and 401.1 is inconsistent with the equal protection of the laws afforded by this section and by the 14th amendment to the United States Constitution.State v. Wylie, 516 P.2d 142 (Alaska 1973).

Alaska’s personnel rules which grant hiring preferences to persons who have satisfied the durational residency requirement penalized interstate travel. State v. Wylie, 516 P.2d 142 (Alaska 1973).

The durational residence requirements for state employment are not tailored with sufficient precision to satisfy the compelling state interest test. State v. Wylie, 516 P.2d 142 (Alaska 1973).

An employment preference is not necessary for reducing unemployment and upgrading state’s human resources. —

See State v. Wylie, 516 P.2d 142 (Alaska 1973).

Or for preventing personnel turnover. —

See State v. Wylie, 516 P.2d 142 (Alaska 1973).

Limiting cost-of-living allowance payments to resident retirees does not violate the Equal Protection Clause of the Alaska Constitution; the small payments were fairly and substantially related to their purpose, and they did not substantially infringe on the right of retirees to live elsewhere. Pub. Emples. Ret. Sys. v. Gallant, 153 P.3d 346 (Alaska 2007).

Cost-of-living allowance residency requirement for public pension systems. —

Alaska public employee retirement and teachers’ retirement systems’ cost-of-living allowance (COLA) residency requirement did not violate the Equal Protection Clause of the Alaska Constitution because COLA had a fair and substantial relationship to its purpose, which was to encourage retirees to continue to live in the state, and it was only a small part of the retirees’ retirement income. Pub. Emples. Ret. Sys. v. Gallant, 153 P.3d 346 (Alaska 2007).

Former AS 38.40.090(1)(A) held unconstitutional. —

Former AS 38.40.090(1)(A), imposing a one-year durational residency requirement under the “Alaska Hire” law, AS 38.40, which required that all oil and gas leases, easements or right-of-way permits for oil or gas pipelines, unitization agreements or any renegotiation of any of these to which the state is a party, contain a requirement that qualified Alaska residents be hired in preference to nonresidents, was invalid as violating the equal protection clauses of the state and federal constitutions. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Statutory scheme established by former AS 43.23.010 was unconstitutional. —

Statutory scheme under former AS 43.23.010 , by which state distributed income derived from its natural resources to adult citizens of the state in varying amounts, based on length of each citizen’s residence, violated equal protection rights of newer state citizens. Zobel v. Williams, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Former AS 43.23.010 did not impose any threshold warning period on those seeking permanent fund dividend benefits; persons with less than a full year of residency were entitled to share in the distribution. Nor did the statute purport to establish a test of the bona fides of state residence. Instead, it created fixed, permanent distinctions between ever-increasing number of perpetual classes of concededly bona fide residents, based on how long they have been in the state. Zobel v. Williams, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Longevity Bonus Program held unconstitutional. —

The Longevity Bonus Program — which provides for cash payments to residents who are over 65, lived in Alaska when it was a territory, and lived in Alaska for 25 continuous years — creates an exclusive class that is to receive special benefits due to the length of the class member’s residence in Alaska. It is thus unconstitutional under this section. Schafer v. Vest, 680 P.2d 1169 (Alaska 1984).

Alaska Const., art. II, § 2, setting residency requirements, is not invalid under the equal protection clause of this section. Gilbert v. State, 526 P.2d 1131 (Alaska 1974), superseded by statute as stated in Alaska Conservation Found. v. Pebble P'ship, 350 P.3d 273 (2015)..

One-year residency requirement for jury service is constitutional. Smiloff v. State, 579 P.2d 28 (Alaska 1978); Webb v. State, 580 P.2d 295 (Alaska 1978).

Where defendant challenged, as a violation of equal protection, a jury array which excluded less-than-one-year residents, the defendant must show that he was harmed by the violation in order to assert the claim on their behalf. Because there was no showing of prejudice stemming from the exclusion, defendant had not shown a colorable equal protection claim. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

The practice of a judicial district to select as jurors only those persons who have been residents of Alaska for one year or more did not deprive defendant of his statutory and constitutional right to an impartial jury and was not in violation of his rights to equal protection of the laws, which rights are guaranteed by the 14th amendment to the federal constitution and this section. Webb v. State, 580 P.2d 295 (Alaska 1978).

One year durational residency requirement for candidacy for city office was constitutional in view of the compelling interests of affording greater voter knowledge of candidates and greater candidate knowledge of the needs of the constituency. Castner v. City of Homer, 598 P.2d 953 (Alaska 1979).

Residency requirement to participate in permanent fund dividend distribution. —

A military family who did not reside in Alaska for five years, and failed to rebut the presumption that they did not intend to return and remain in Alaska was not denied equal protection under the “allowable absence” provisions in AS 43.23.008 (9)-(10). Harrod v. State, 255 P.3d 991 (Alaska 2011).

A service member who had lived outside Alaska for more than ten years, and who was denied his permanent fund dividend based on a former provision of AS 43.23.008 , was collaterally estopped from raising the same equal rights claim in a proceeding related to the 2013 PFD when that claim had been decided in the litigation for the 2010 PFD. Ross v. State Dep't of Revenue, — P.3d — (Alaska Jan. 29, 2014) (memorandum decision).

Statutory presumption of nonresidence for Permanent Fund Dividend (PFD) purposes created by a husband's absence from Alaska for over five years did not violate Alaska or federal equal protection because (1) minimal scrutiny applied to this mere economic interest, and (2) the statute was substantially related to achieving a legitimate governmental objective. Jones v. State, 441 P.3d 966 (Alaska 2019).

Three-year residency requirement unconstitutional. —

A three-year residency requirement for local city council officer was unconstitutional under the equal protection clause. Peloza v. Freas, 871 P.2d 687 (Alaska 1994).

F.Employment

Distinctions between vocational and academic training. —

The distinctions drawn in the unemployment compensation law between vocational training and academic training are reasonable, not arbitrary, and are fairly and substantially related to their purposes. Thus, the distinctions do not violate the state’s equal protection or substantive due process guarantees. Sonneman v. Knight, 790 P.2d 702 (Alaska 1990).

Distinction between licensed and unlicensed practitioners. —

While a common-law psychotherapist-patient privilege obtains in Alaska, but this privilege is limited to communications made to a psychiatrist or licensed psychologist and to communications made in the course of intensive, deep psychotherapy, of the type which requires confidentiality for its success, a distinction between licensed and unlicensed practitioners is not a violation of the “equal protection” clauses of the state and federal constitutions. Allred v. State, 554 P.2d 411 (Alaska 1976).

An interest in employment is not a fundamental right entitled to “compelling interest” scrutiny. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Hiring preference for Native Americans. —

Borough charter provision creating borough employment preferences for Native Americans violated the guarantee of equal protection under Alaska Const. art. I, § 1, because although it sought to protect an important interest for equal protection purposes, the right to seek and obtain employment in one’s profession, the interest was not legitimate under either the Alaska Constitution or an exception to the Civil Rights Act of 1964, and the charter provision, which covered not only hiring but all promotions and raises, was not narrowly tailored. Malabed v. N. Slope Borough, 70 P.3d 416 (Alaska 2003).

Hiring preference to residents of economically distressed zones. —

Section 36.10.160, which provides a hiring preference to residents of economically distressed zones for certain employment on public works projects, is unconstitutional under the equal protection clause. State by Departments of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624 (Alaska 1989).

Construction workers who did not reside in an economically distressed zone had citizen-taxpayer standing to challenge a statutory hiring preference for eligible individuals residing within a zone of underemployment. State by Departments of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624 (Alaska 1989).

Discriminatory benefits programs held violative of equal protection to same-sex couples. —

Benefits program was held to facially discriminate against same-sex domestic partners by covering married public employees but not domestic partners because, unlike opposite-sex domestic partners, same-sex domestic partners were barred from marriage under Alaska Const. art. I, § 25, and thus were absolutely precluded from eligibility; the policy was not substantially related to legitimate government interests in cost control, administrative efficiency, and promotion of marriage; it therefore violated equal protection under this section. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Workers’ Compensation computation unconstitutional. —

The gross weekly wage determination method of AS 23.30.220(a) creates large differences in compensation between similarly situated injured workers, bears no relationship to the goal of accurately calculating an injured employee’s lost wages for purposes of determining his or her compensation, is unfair to workers whose past history does not accurately reflect their future earning capacity, and is unnecessary to achieve quickness, efficiency, or predictability. The formula expressed is not substantially related to the purposes of the Workers’ Compensation Act, and cannot survive scrutiny on even the lowest end of the sliding scale; therefore, the formula is an unconstitutional infringement on the equal protection clause of the Alaska Constitution. Gilmore v. Alaska Workers' Comp. Bd., 882 P.2d 922 (Alaska 1994), amended, 882 P.2d 922 (Alaska 1994), limited, Dougan v. Aurora Elec., Inc., 50 P.3d 789 (Alaska 2002).

Limitation on employer’s total liability under Workers’ Compensation Act. —

With regard to the Workers’ Compensation Act, there is a fair and substantial relationship between the legislative objective of providing guaranteed, expeditious compensation to the injured employee and the limitation in AS 23.30.055 on the employer’s total liability regardless of its percentage of fault, even though that limitation has the effect of denying the third-party tort-feasors the right to pro rata contribution from the employer. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

Subsection (p)(7) of AS 23.30.041 [now AS 23.30.041 (r)(7)] does not violate the equal protection clause and due process clause of the Alaska Constitution. Meek v. Unocal Corp., 914 P.2d 1276 (Alaska 1996).

Due process right to worker’s compensation held not infringed. —

Oil rig worker, who was employed by a contractor, brought a third-party suit against an oil company for work-related injuries; the worker’s equal protection rights were not violated by the 2004 amendments to AS 23.30.045 and 23.30.055 because the worker’s interests were economic; therefore, a minimum scrutiny level of review was applied, and the state had legitimate objectives in enacting the amendments. Schiel v. Union Oil Co., 219 P.3d 1025 (Alaska 2009), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

There was no state action where a plaintiff pilot sued an association of pilots for the right to pursue livelihood, so plaintiff’s constitutional claim was invalid. Spence v. Southeastern Alaska Pilots' Ass'n, 789 F. Supp. 1014 (D. Alaska 1992).

Requiring labor agreement. —

A borough’s action in requiring bidders on a construction project to enter into a project labor agreement with local labor unions did not violate the equal protection rights of nonunion workers. Laborers Local # 942 v. Lampkin, 956 P.2d 422 (Alaska 1998).

Distinction between union and non-union university employees. —

Arbitrator’s finding that a university had violated a collective bargaining agreement nondiscrimination clause was gross error because the distinction between union and non-union university employees regarding pay increases was not protected by law. Univ. of Alaska v. Alaska Cmty. Colleges' Fedn. of Teachers, Local 2404, 64 P.3d 823 (Alaska 2003).

G.Fish and Game

Superexclusive use regulations upheld. —

A regulation governing superexclusive use has the same effect on local fishermen who wish to fish outside one of the superexclusive use districts as it does on outsiders with a similar desire. Similarly, nonresidents are free to choose to fish in a superexclusive use district. Thus, the regulation did not violate this provision. State v. Herbert, 803 P.2d 863 (Alaska 1990).

Regulation of entry into commercial fisheries. —

The point scheme under regulations promulgated by the commission to regulate entry into the commercial fisheries based on a “hardship” standard of economic dependence is reasonable and not arbitrary, as it provides for consideration of all the factors which the legislature thought relevant to economic dependence, and bears a fair and substantial relation to the object of the act. Younker v. Alaska Commercial Fisheries Entry Comm'n, 598 P.2d 917 (Alaska 1979).

Commercial Fisheries Entry Commission’s administrative regulations. —

Within the scheme of the point system used for issuing limited entry permits, the Commercial Fisheries Entry Commission’s administrative regulation specifying the number of points awarded for availability of alternative occupations based solely on the total population and the proportion of rural population in the census district or county of an applicant’s domicile, 20 AAC 05.630(b)(4), violates equal protection rights guaranteed by Alaska Const., art. I, § 1. Deubelbeiss v. Commercial Fisheries Entry Comm'n, 689 P.2d 487 (Alaska 1984).

Distinction as to eligibility for entry permits upheld. —

The requirement in AS 16.43.260(a) that only persons who had harvested fishery resources commercially while participating in the fisheries as holders of gear licenses are eligible to apply for entry permits authorizing the operation of fishing gear within a specified area does not violate this section since it bears a fair and substantial relationship to the purpose of preventing unjust discrimination in the allocation of entry permits. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

Action, subsequent to Isakson v. Rickey , 550 P.2d 359 (Alaska 1976), of the Commercial Fisheries Entry Commission in promulgating 20 AAC 05.510(f) setting up a new application period for entry permits under AS 16.43.260(b) but restricting applications in this period to only those who had fished with gear licenses for the first time during 1973 or 1974 did not deny equal protection of the law to those applicants who had fished with gear licenses for the first time between 1960 and 1972 by requiring them to have filed under the original application period and not allowing them to file under the new application period. Vik v. Commercial Fisheries Entry Comm'n, 636 P.2d 597 (Alaska 1981).

Provision of AS 16.43.260(a) held unconstitutional. —

AS 16.43.260(a) , limiting applications for entry permits to those holding gear licenses prior to January 1, 1973, violated the equal protection rights guaranteed by the state and federal constitutions of commercial fishermen who became holders of gear licenses after January 1, 1973. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Holding a gear license before January 1, 1973, does not bear a fair and substantial relation to the purpose of the legislation, which is the segregation of hardship and nonhardship cases. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Because persons are automatically excluded from the class eligible to apply for permits, in spite of active participation and economic dependence upon the fishery, the January 1, 1973, classification is under-inclusive with respect to persons allowed to apply for permits. Because persons who have long since retired and have no economic dependence upon the fishery as of the cutoff date are allowed to apply for entry permits, the classification is overbroad with respect to those allowed to apply. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

Limited Entry Act. —

The entry restrictions of the Limited Entry Act, AS 16.43, do not violate this section. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).

The requirement that applicants for entry permits be past gear licensees bears a fair and substantial relationship to the purpose of preventing unjust discrimination in allocating entry permits. Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486 (Alaska 1984).

A classification based on whether individuals were gear license holders was constitutional and did not violate equal protection. Nash v. Commercial Fisheries Entry Comm'n, 679 P.2d 477 (Alaska 1984).

Neither due process nor equal protection requires an exception to the filing deadline in AS 16.43.260(b) for applicants who can demonstrate that they failed to timely file because of insanity. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Requirements for entering gill net fishery. —

Commercial fisheries entry commercial regulation requiring that setnetters applying for permits to enter the gill net fishery be 90 percent dependent upon income from fishing in 1972 to receive full income dependence points was not arbitrary and unreasonable, and did not deny equal protection. Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200 (Alaska 1990).

The classification which imposes different tax rates on “floating” and “shore-based” fish processors does not constitute a violation of the federal and state guarantees of equal protection. However, on petition for rehearing, the court found one of the appellant processors to be entitled to a tax refund for the period that it was, in fact, “shore-based”. State v. Reefer King Co., 559 P.2d 56 (Alaska 1976), modified on rehearing, 562 P.2d 702 (Alaska 1977).

It was not arbitrary for the legislature to conclude that “shore-based” fish processors, with at least a year’s commitment to one location, were to be preferred over floating processors, which distributed economic benefits over several locations. State v. Reefer King Co., 559 P.2d 56 (Alaska 1976), modified on rehearing, 562 P.2d 702 (Alaska 1977).

No showing that state selectively enforced former AS 43.75.060 , pertaining to fisheries business licenses, against certain floating processors. —

See State v. Reefer King Co., 559 P.2d 56 (Alaska 1976), modified on rehearing, 562 P.2d 702 (Alaska 1977).

Restrictions on nonresident fishermen. —

Chapter 62, SLA 1961, placing certain restrictions on nonresident fishermen, violated the provisions of this section. Brown v. Anderson, 202 F. Supp. 96 (D. Alaska 1962).

Fishing permit regulations do not violate equal protection. —

Requiring the permit-holder of a commercial fishing license to be personally present during fishing operations does not substantially impair the permit-holder’s right to engage in commercial fishing or his right of access to the fishery. Although the regulation does impair the permit-holder’s ability to take another job and let someone else use the permit to fish, the permit-holder has only a minimal interest (if any) in being able to rent or loan his or her permit to others outside the parameters of existing law. Baker v. State, 878 P.2d 642 (Alaska Ct. App. 1994).

A hunting guide license is a sufficient property interest to qualify for the protection of due process. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Distinction between air and land transportation of bear. —

There is valid basis for placing a restriction on hunting bear and transporting the bear with aircraft, and not also placing the same restriction on hunters on foot or with land vehicles, i.e., to protect the state’s game resources from becoming depleted or even extinct. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Guiding without valid license. —

Punishing guiding without a valid license as a felony under former law did not violate defendant’s right to equal protection since he was subject to the same penalties as any other person committing the same misconduct. Maeckle v. State, 792 P.2d 686 (Alaska Ct. App. 1990).

Former statute which made guiding without a license a minor felony was a reasonable, direct, and effective means of furthering the state’s strong and legitimate interest in enacting firm measures to discourage unlicensed guiding, given the importance of the state’s wildlife resources and the difficulties inherent in the enforcement of guiding statutes in remote locations, so that punishing violations of the former law as a felony did not violate defendant’s right to equal protection. Maeckle v. State, 792 P.2d 686 (Alaska Ct. App. 1990).

Regulations by the board of game. —

The regulations by the board of game that designated the Noatak and Nenana areas as controlled use areas were constitutional, were within the authority of the board, and were neither arbitrary nor unreasonable. Interior Alaska Airboat Ass'n v. Bd. of Game, 18 P.3d 686 (Alaska 2001).

H.Juries

Exclusion of members of class from jury. —

An individual’s right to equal protection of the law will be violated when that individual is subjected to trial by a jury from which members of a class to which he belongs have been systematically excluded. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Plaintiffs’ right to equal protection of the law was not denied where there was no showing that they were members of any class excluded from their jury panel, or that they could have in any way been prejudiced by the exclusion of any class from the panel. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

As long as the area from which the grand jury is chosen does not underrepresent a cognizable group when compared to the state as a whole, the court will find no equal protection violation. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984).

Jury selection procedure must operate free of discrimination. —

Both the Constitution of the United States and the Alaska Constitution mandate that jury selection procedures operate free of discrimination. Avery v. State, 514 P.2d 637 (Alaska 1973).

An accused in a criminal proceeding is entitled to a jury “drawn from a fair cross section of the community.” Avery v. State, 514 P.2d 637 (Alaska 1973).

Full hearing on charge jury is improperly constituted. —

In a criminal case, it is error to refuse to grant a full hearing on a charge that the jury has been improperly constituted. Avery v. State, 514 P.2d 637 (Alaska 1973).

Effect of prima facie showing of racial discrimination. —

Where there has been made out a prima facie case of the intentional exclusion of blacks from the jury, a denial of equal protection under the 14th amendment to the United States Constitution and this section would be shown without the necessity of applying the broad “fair cross section” due process standards. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Underrepresentation of Alaska natives. —

The fact that defendant was indicted by a grand jury convened in Fairbanks, which has a substantially smaller population of Alaska natives than Barrow, where the offense occurred, did not establish violation of his equal protection rights since his grand jury did not substantially underrepresent Alaska natives when compared to that group’s representation in the state as a whole. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984).

Jury trial regarding tax assessments. —

There is no constitutional right to a trial by jury to determine proper tax assessments. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Amendment to AS 09.20.050 . —

A determination of the method for selecting juries is a matter within the legislative prerogative, and the 1969 amendment to AS 09.20.050 was a lawful exercise of legislative authority. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Use of striking system and consolidated voir dire. —

Where the presiding judge was faced with an unusually large number of cases to be tried within a single week, his utilization of a striking system instead of a peremptory challenge system only and consolidated voir dire for 15 OMVI cases and no other cases did not violate the equal protection clauses of either the federal or state constitution. Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981).

I.Juveniles

Rights of juveniles. —

Regardless of benevolent-sounding labels, incarceration, when applied to children, is a taking of liberty under the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Children are possessed of fundamental rights under the Alaska Constitution. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Children’s constitutional rights will not be denied in deference to governmental benevolence or popular social theories. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Society uses incarceration for rehabilitative purposes with adult criminals as well as juvenile delinquents, yet none suggest that benevolent purposes justify deprivation of rights applicable to adult prosecutions. RLR v. State, 487 P.2d 27 (Alaska 1971).

The due process clause of the 14th amendment applies when a child is charged with misconduct for which he may be incarcerated in an institution, regardless of the labels of the adjudication and institution, so the child is entitled to notice of charges, counsel, confrontation and cross-examination, and the privilege against self-incrimination. RLR v. State, 487 P.2d 27 (Alaska 1971).

AS 47.12.030(a) , placing the burden on defendant to prove his amenability to juvenile treatment, does not violate the equal protection and due process clauses of the Alaska Constitution. Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998).

Combination of the automatic waiver statute and the adult sentencing statute was consistent with evolving standards of decency and this scheme bore a fair and substantial relationship to the legitimate purposes of punishment; the sentencing judge gave the minor defendant’s rehabilitative prospects careful scrutiny and appropriate weight and the resulting sentence for first-degree murder was not clearly mistaken. Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011).

Alaska Statutes 47.12.030(b), requiring a juvenile's adult prosecution for a misdemeanor traffic offense, did not violate equal protection because (1) the juvenile had a limited interest in juvenile prosecution, (2) driving was a heavily regulated dangerous adult activity, (3) the legislature had a legitimate interest in assuring minors who drove were held to an adult standard of care and could rationally conclude minors posed a particularly significant threat to minors' own and the public's safety, and (4) there was no particular anomaly in treating juvenile felony traffic offenders as juveniles. Watson v. State, 400 P.3d 121 (Alaska Ct. App. 2017), aff'd, 487 P.3d 568 (Alaska 2021).

“Parental rights” protected by constitution. —

See L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

The right of parents to the care, custody and control of their children is an important and substantial right, protected by, although not specifically enumerated in, both the United States and Alaska constitutions. In re S. D., 549 P.2d 1190 (Alaska 1976).

Parents’ rights balanced against those of children. —

The parents’ constitutional right to the care and custody of their children must be balanced against the rights of their children to an adequate home and education. In re S. D., 549 P.2d 1190 (Alaska 1976).

State may interfere with conduct of children in need of supervision. —

Conduct of children alleged to be in need of supervision [see now children alleged to be in need of aid], such as running away from home and foster home placement, may constitutionally be interfered with by the State. L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

Interests to be protected by legislation regarding children in need of aid. —

See L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

Means chosen by the state to protect children are closely and substantially related to an appropriate government interest. L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

Foster parents. —

Since payment to a foster parent is triggered by the child’s presence, and not by the individual’s foster parent status, the parent cannot know with certainty how much he will receive in a given year, and his interest in a foster care license is at most merely economic, entitled to minimal protection under the state equal protection analysis. Wilkerson v. Department of Health & Soc. Servs., Div. of Family & Youth Servs., 993 P.2d 1018 (Alaska 1999).

License suspension. —

Administrative suspension of the driver’s license of a motorcyclist who failed to maintain insurance did not violate equal protection because the different sanctions established by AS 28.22.021 and 28.22.041 , requiring license suspension for some but not all uninsured motorists, reasonably further the state interest in preventing uninsured driving. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Difference in treatment of felony and non-felony traffic offenses. —

Statute requiring a minor who was accused of a non-felony traffic offense to be charged, prosecuted, and sentenced in the district court in the same manner as an adult, but not applying that provision when the minor was accused of committing a felony violation, did not violate the equal protection provision because classifying minor offenders according to whether they were charged with a felony or misdemeanor violation was closely related to the State's competing interests of deterrence and rehabilitation as it promoted the State's interest in a uniform system of penalties to deter bad driving and protect the public, but the legislature could have concluded that the legal consequences of a felony conviction were too severe for a minor. Watson v. State, 487 P.3d 568 (Alaska 2021).

J.Schools

State aid to local educational districts. —

Individual plaintiffs failed to establish their claim that the educational interests of their children were adversely affected, or their equal protection rights violated, by the local school contribution provisions of AS 14.11.025(a) and (d) and the provisions of AS 14.11.100(a) concerning state aid for costs of school construction debt, notwithstanding the statutes’ disparate treatment of school boroughs and regional educational attendance areas (REAAs) for state aid purposes. Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997).

Parents have a privacy and liberty interest in their children’s health care under Alaska Const. art. I, §§ 1 and 22. The state has a compelling interest in preventing school children from spreading tuberculosis, but the state’s interest could be met with the use of less intrusive testing. Huffman v. State, 204 P.3d 339 (Alaska 2009).

Students have right to individual hairstyles. —

Under this section of the Alaska Constitution’s affirmative grant to all persons of the natural right to “liberty,” students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

In the absence of any compelling justification, a school hair length regulation impermissibly infringes upon a student’s constitutional right under Alaska’s constitution which guarantees him the liberty of personal choice as to appearance. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

But such right is not absolute. —

While the right of students to fashion their own appearances by wearing their hair in accordance with their own individual preference in public schools is a fundamental constitutional right implicit in the concept of liberty as guaranteed by the Constitution of Alaska, such right is not absolute. There may be instances in which the state acting through a school administration would be justified in regulating the hair length of its citizenry. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

State must have compelling interest in school hair regulations. —

If a student’s choice of hairstyle is regarded as an interest entitled to special protection under the due process clause, the state must have a compelling subordinating interest in regulations. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

And must bear a substantial burden of justification. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Production of “hard facts” required to justify school regulations. —

There is a trend in long hair cases towards requiring the production of “hard facts” in order to justify school regulations. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Contrary to the beliefs of many people, the courts are not so much saying that the schools cannot act to achieve traditional aims — to prevent disruption, for example — but they are saying that they will no longer take an administrator’s unsupported word that absent a given rule, regulation, or procedure, disruption will take place. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Zoning ordinance which excluded all nonpublic schools from a residential area was constitutionally permissible, and city was not compelled to allow plaintiff to operate a parochial school in its church building located in the area. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982).

K.Taxes

Standing of taxpayers. —

Citizens who have paid validly assessed taxes have standing to sue government entities for relief in the nature of mandamus and force uniform collection of the tax from citizens who have not been assessed at all or assessed at lower rates. Douglas v. Glacier State Tel. Co., 615 P.2d 580 (Alaska 1980).

See note under catchline “Hiring preference to residents of economically distressed zones,” under analysis heading II.F. above. State by Departments of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624 (Alaska 1989).

Collection of permanent fund dividends. —

AS 43.23.005(d) , which prohibits certain felons from collecting permanent fund dividends, does not violate the equal protection clause of the United States Constitution and/or the Alaska Constitution. State v. Anthony, 810 P.2d 155 (Alaska 1991).

Changes in the qualifying date for a permanent fund dividend (pfd) do not violate the constitutional rights of new residents. Plaintiffs, as new residents, had only an inchoate expectancy of a pfd, which is not afforded constitutional protection. Underwood v. State, 881 P.2d 322 (Alaska 1994), cert. denied, 514 U.S. 1064, 115 S. Ct. 1694, 131 L. Ed. 2d 558 (U.S. 1995).

Collection of borough sales tax on long-distance phone calls. —

Where taxpayers alleged that a borough violated their equal protection rights by failing to collect a borough sales tax on long-distance phone calls charged to phones within the borough from certain customers of a telephone company, in order to avoid summary judgment on the issue of whether such a violation has occurred, taxpayers must produce evidence tending to show a dispute exists over whether unequal enforcement of the tax has taken place, and whether the selective enforcement was part of an arbitrary or intentional plan to discriminate. Douglas v. Glacier State Tel. Co., 615 P.2d 580 (Alaska 1980).

Tax treatment of hospital equipment is rational. —

The different tax treatment of equipment which is either owned or leased by a hospital is rational and bears a fair and substantial relation to the object of AS 29.53.020(a)(3) [see now AS 29.45.030(a)(3) ], which exempts from municipal property tax property used exclusively for nonprofit religious, charitable, cemetery, hospital or educational purposes; therefore, taxation of leased property does not violate the equal protection clauses of the Alaska and United States constitutions. Sisters of Providence in Wash., Inc. v. Municipality of Anchorage, 672 P.2d 446 (Alaska 1983).

Tax discrimination against foreign corporations. —

Former AS 21.09.210(b) violated the equal protection clauses of both the Alaska and the federal constitutions because it imposed a higher tax on foreign insurance companies than on domestic insurance companies, a discrimination which lacked any legitimate state purpose. Principal Mut. Life Ins. Co. v. State, Div. of Ins., 780 P.2d 1023 (Alaska 1989).

Retaliatory tax. —

Applying Alaska’s retaliatory tax to an out-of-state health insurer under AS 21.09.270 did not violate this provision because such application was consonant with the permissible purpose of retaliatory tax statutes, and it fairly and substantially furthered that purpose. Premera Blue Cross v. State, 171 P.3d 1110 (Alaska 2007).

Tax exemption for property used as permanent residence. —

Actual classification that was created by an ordinance, which exempted from taxation the first $10,000 of residential property used as the owner’s permanent place of residence, was between owners of owner-occupied primary residences in the borough and owners of second homes or other types of real property in the borough; because the classification pertained to economic interests and did not involve suspect or quasi-suspect classifications, the “legitimate reason” test applied. Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Legitimate reason supported disparate treatment by an ordinance, which exempted from taxation the first $10,000 of residential property used as the owner’s permanent place of residence; where the exemption was evidently designed to protect and promote home ownership, which was beneficial to the community, the ordinance did not violate the Equal Rights Clause. Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Condominiums. —

Assessment of real property taxes upon owner’s condominium unit and for the limited common element attached to his unit did not violate owner’s right to equal protection under the law pursuant to Alaska Const., art. I, § 1 because despite the fact that owner’s property was being treated like a single family home, such treatment was justified because owner was not similarly situated to other condominium unit owners. Black v. Municipality of Anchorage, 187 P.3d 1096 (Alaska 2008).

Borough guide and lodge tax did not violate the equal protection clauses of the United States and Alaska Constitutions. Katmailand, Inc. v. Lake & Peninsula Borough, 904 P.2d 397 (Alaska 1995).

Denial of tax exemption held proper. —

Fairbanks, Alaska, North Star Borough Code 03.08.020 did not violate this provision or AS 29.45.250 . The borough’s denial of a partial tax exemption based on the homeowner’s failure to pay the prior year’s taxes in a timely manner was a legitimate public purpose in motivating the prompt payment of taxes. Lot 04B & 5C, Block 83 Townsite v. Fairbanks N. Star Borough, 208 P.3d 188 (Alaska 2009).

Judgment in favor of city for accrued sales taxes affirmed despite argument that ordinance’s exemption scheme violated equal protection. —

See Euwer v. City of Palmer, 572 P.2d 436 (Alaska 1977).

L.Voting

Limiting the voting privilege to citizens of the United States does not conflict with the equal protection clause of the Alaska Constitution, contained in this section. Park v. State, 528 P.2d 785 (Alaska 1974).

It must be assumed that the drafters of the Alaska Constitution considered that the qualifications for voting stated in Alaska Const., art. V, § 1, did not create a classification prohibited by the Declaration of Rights in this section, as the provisions were adopted concurrently. Park v. State, 528 P.2d 785 (Alaska 1974).

Alien permanently residing in Alaska may be precluded from voting in state elections. —

Park v. State, 528 P.2d 785 (Alaska 1974).

Elimination of a portion of the military personnel from the population base in the 1974 revised reapportionment plan did not constitute an unconstitutional employment classification violative of due process and equal protection. Groh v. Egan, 526 P.2d 863 (Alaska 1974).

It is not offensive to notions of equal protection to exclude from the population base even military personnel who have lived in Alaska for substantial periods of time, so long as those people have exercised their option to remain residents and domiciliaries of other states. Groh v. Egan, 526 P.2d 863 (Alaska 1974).

Reapportionment. —

The 1984 creation of Senate District E tended toward disproportionality of representation and therefore impermissibly discriminated against Anchorage voters under Alaska’s equal protection clause, even though it was not violative of the federal equal protection clause; however, since the effect of the discrimination was de minimus, the state was not required to redraw the district. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

The 1984 realignment of Southeast Alaska to comply with Carpenter v. Hammond , 667 P.2d 1204 (Alaska 1983) effectuates consistent and rational state policies and, therefore, does not violate the equal protection clauses of either the federal or Alaska Constitution. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

Where there is no fundamental right at stake, the equal protection clause of the Alaska Constitution imposes a stricter standard than its federal counterpart; hence, while the applicable federal equal protection standard in reapportionment cases has not been clearly established, the court will continue to use Alaska’s stricter equal protection standard when assessing the constitutionality of a reapportionment plan. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

In cases challenging reapportionment, the presentation of evidence that indicates, when considered with the totality of the circumstances, that the state acted intentionally to discriminate against the voters of a geographic area will serve to compel the state to demonstrate that its acts aimed to effectuate proportional representation, that is, the state will have the burden of proving that any intentional discrimination against voters of a particular area will lead to more proportional representation. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

A neutral factors test should be employed to assess the legitimacy of the state’s purpose in designing a district. Under such a test a court looks both to the process followed by the state in formulating its decision as well as to the substance of the state’s decision in order to ascertain whether the state intentionally discriminated against a particular geographic area. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

Although Alaska courts will not consider any effect of disproportionality de minimus in determining whether the state’s purpose in designing reapportioned districts is illegitimate, the degree of disproportionality will be considered in determining the appropriate relief to be granted. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987).

Rigid standards for reapportionment applied in Egan v. Hammond , 502 P.2d 856 (1972), have been ameliorated. —

Groh v. Egan, 526 P.2d 863 (Alaska 1974).

Denial of the right to vote, standing by itself, is not a sufficient condition for judicial relief. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Right to vote not denied residents of temporarily-existing borough. —

Where the Eagle River-Chugiak Borough was officially incorporated on September 12, 1974, but the act authorizing the residents of that area to vote on the question of whether or not to form a second class borough was held unconstitutional in Abrams v. State , 534 P.2d 91 (Alaska 1975) on April 15, 1975, and the Eagle River-Chugiak area was automatically reincorporated into the Greater Anchorage Area Borough, the Eagle River-Chugiak area residents were not unconstitutionally denied the right to vote in a February 11, 1975 election held in the Greater Anchorage Area Borough in which the creation of a charter commission was approved, and its members elected. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Insofar as the right to vote in the charter commission election can be viewed as having been denied residents of the then existing Eagle River-Chugiak Borough, such denial was based solely upon consideration of geographical location within this newly created political subdivision. To view this geographical classification as suspect would be irrational. At the time the classification was made, rather than being “suspect,” it was compelled because the Eagle River-Chugiak Borough was not part of the Greater Anchorage Area Borough. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Campaign disclosure. —

When there is no showing that an individual must remain anonymous with respect to advertising as to ballot propositions because of the possibility of being subject to reprisals, economic or otherwise, the state campaign disclosure laws, AS 15.13.010 15.13.130 , are not unconstitutional as applied to a contributor hoping to influence the outcome of a ballot issue because the objective of an informed electorate is sufficiently compelling to overcome an interest in anonymous political expression. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Ten percent polling requirement for defining “political party”. —

For case holding unconstitutional the definition of “political party” which limited political party status to those organizations able to poll 10 percent of the electorate, see Vogler v. Miller, 660 P.2d 1192 (Alaska 1983), construing AS 15.60.010(20).

Collateral references. —

16A Am. Jur. 2d, Constitutional Law, §§ 400-414.

16A C.J.S., Constitutional Law, §§ 629 to 644, 681 to 689; 16C C.J.S., Constitutional Law, §§ 1504 to 1521.

Validity of public school funding systems. 110 ALR5th 293.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women. 118 ALR5th 463.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship. 123 ALR5th 411.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Public employment cases. 168 ALR Fed. 1.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases. 172 ALR Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases. 178 ALR Fed. 25.

Section 2. Source of Government.

All political power is inherent in the people. All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole.

Opinions of attorney general. —

Alaska Const., art. V, § 1, holding that citizens who meet certain requirements may vote, is one of the provisions that would preclude the banning of write-in votes. The other is this section, which states that government originates with the people and is founded on their will. 1963 Alas. Op. Att'y Gen. No. 30.

Notes to Decisions

State constitution as basis for government. —

The Alaska Constitution forms the basis for the fundamental government of this state. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

The purpose of holding elections is to ascertain the public will. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Denial of the right to vote, standing by itself, is not a sufficient condition for judicial relief. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Right to vote not denied in temporarily-existing borough. —

Where the Eagle River-Chugiak Borough was officially incorporated on September 12, 1974, but the act authorizing the residents of that area to vote on the question of whether or not to form a second class borough was held unconstitutional in Abrams v. State , 534 P.2d 91 (Alaska 1975) on April 15, 1975, and the Eagle River-Chugiak area was automatically reincorporated into the Greater Anchorage Area Borough, the Eagle River-Chugiak area residents were not unconstitutionally denied the right to vote in a February 11, 1975 election held in the Greater Anchorage Area Borough in which the creation of a charter commission was approved, and its members elected. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Insofar as the right to vote in the charter commission election can be viewed as having been denied residents of the then existing Eagle River-Chugiak Borough, such denial was based solely upon consideration of geographical location within this newly created political subdivision. To view this geographical classification as suspect would be irrational. At the time the classification was made, rather than being “suspect,” it was compelled because the Eagle River-Chugiak Borough was not part of the Greater Anchorage Area Borough. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Random order of names on ballot constitutional. —

The 1995 amendment to AS 15.15.030 (6), which replaced rotation of candidates’ names on election ballots with random determination of the order of names, does not impermissibly burden the right to vote or violate the requirements of the Alaska Constitution that elections be based on the will of the people and that legislators and the governor be elected. Sonneman v. State, 969 P.2d 632 (Alaska 1998).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), discussing in depth the history of the insanity defense in Alaska.

Punishment for unlicensed sale of alcohol. —

Punishment for the unlicensed sale of alcohol in a local option community as a class C felony is not constitutionally disproportionate. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Quoted in

Falke v. Fairbanks N. Star Borough, 648 P.2d 597 (Alaska 1982); Swetzof v. Philemonoff, 203 P.3d 471 (Alaska 2009).

Cited in

Lake & Peninsula Borough v. Local Boundary Comm'n, 885 P.2d 1059 (Alaska 1994); State v. Moreno, 151 P.3d 480 (Alaska Ct. App. 2006).

Section 3. Civil Rights.

No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin. The legislature shall implement this section.

Cross references. —

For provisions prohibiting discrimination based on sex or race in public education, see AS 14.18.010 14.18.110 ; for provisions prohibiting discrimination generally, see AS 18.80.

Effect of amendments. —

The amendment effective October 14, 1972 (7th Legislature’s HJR 102 (1972)) inserted “sex” in the first sentence.

Opinions of attorney general. —

This section as implemented by AS 18.80 probably prohibits the state from enacting any laws or adopting any regulations giving special hunting privileges to a class of citizens consisting of Eskimos, Aleuts, and Indians only. January 21, 1981 Op. Att’y Gen.

Notes to Decisions

Prerequisites for valid claims. —

For claims under Alaska Const., art. I, §§ 1 and 3 to be valid, there must be showing of a link between the organization’s allegedly discriminatory conduct and the governmental involvement which is sufficiently strong to indicate that the state is, in effect, a joint participant in the challenged activity. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

“State action” is a necessary predicate to application of Alaska Const., art. I, §§ 1 and 3. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

Evidence of employment discrimination. —

Appellant, a 58-year-old Asian-American woman, produced evidence sufficient to create an inference that the Alaska Department of Transportation and Public Facilities’ alleged reason for not promoting her to the position of Engineer II was a pretext for discrimination in violation of Alaska Const. art. 1, § 3. Appellant provided a letter detailing adverse employments; provided the names of others who secured Engineer II and III positions with the same or fewer qualifications than appellant; and identified a witness who could corroborate her allegations. Grundberg v. Alaska State Comm'n for Human Rights, 276 P.3d 443 (Alaska 2012).

Insufficient evidence to satisfy state action requirement. —

Evidence was insufficient to establish the requisite nexus between the conduct of the state and the Jaycees’ membership policies which exclude women as full members, and therefore the state action requirement was not satisfied. United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983).

Assessment of equal protection claims. —

The supreme court must assess equal protection claims under the Alaska Constitution by considering the purpose of the statute, the legitimacy of that purpose, the means used to accomplish the legislative objective, and then determine whether the means chosen substantially further the goals of the enactment. It must also balance the state interest in the chosen means against the nature of the constitutional right which is at issue. Plas v. State, 598 P.2d 966 (Alaska 1979).

Right to sue for loss of consortium. —

Discrimination on the basis of sex in granting only the husband the right to sue for loss of consortium would violate this section. Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974).

Alien who is a permanent resident of Alaska may be precluded from voting in state elections. Park v. State, 528 P.2d 785 (Alaska 1974).

Prohibiting permanent fund dividend distribution to illegal aliens. —

An administrative regulation, which restricted permanent fund dividend eligibility to aliens with resident alien or refugee status, fell within the delegated authority of the commissioner of revenue to regulate the eligibility of individuals for permanent fund dividends. The regulation was also constitutional under the state and federal equal protection clauses. Limiting the distribution of dividends to those who are lawful permanent residents is rationally related to legitimate objectives of the dividend program. Department of Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621 (Alaska 1993).

Statute prohibiting soliciting or procuring for purpose of prostitution was violative of this section and § 1 of this article, insofar as it limited its operation to selling only a female body. Plas v. State, 598 P.2d 966 (Alaska 1979).

Coat and tie requirement for attorneys for court appearances did not amount to impermissible gender discrimination on the ground it applied to males and not females. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

Quoted in

Luedtke v. Nabors Alaska Drilling, 768 P.2d 1123 (Alaska 1989); State v. Planned Parenthood, 35 P.3d 30 (Alaska 2001); Malabed v. N. Slope Borough, 70 P.3d 416 (Alaska 2003).

Cited in

Brown v. Wood, 575 P.2d 760 (Alaska 1978); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986).

Collateral references. —

Preconviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory. 4 ALR3d 404.

Indigency of offender as affecting validity of imprisonment as alternative to payment of fine. 31 ALR3d 926.

Racial discrimination in punishment for crime. 40 ALR3d 227.

Validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold. 46 ALR3d 369.

Zoning provisions protecting land owners who applied for or received building permit prior to change in zoning. 49 ALR3d 1150.

Discrimination in provision of municipal services or facilities as civil rights violation. 51 ALR3d 950.

Application of state law to sex discrimination in sports. 66 ALR3d 1262.

Mandatory retirement of public officer or employee based on age. 81 ALR3d 811.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination. 85 ALR3d 940.

State laws prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages. 89 ALR3d 7.

Validity, construction, and effect of state statutes affording preferential property tax treatment to land used for agricultural purposes. 98 ALR3d 916.

Validity of statutory classifications based on population — tax statutes. 98 ALR3d 1083.

Constitutionality of rape laws limited to protection of females only. 99 ALR3d 129.

Identification of jobseeker by race, religion, national origin, sex, or age, in “situation wanted” employment advertising as violation of state civil rights laws. 99 ALR3d 154.

Validity of state statutes restricting the right of aliens to bear arms. 28 ALR4th 1096.

Judicial power to order discontinuance of life-sustaining treatment. 48 ALR4th 67.

Paternity proceedings: right to jury trial. 51 ALR4th 565.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees. 51 ALR4th 702.

Court appointment of attorney to represent, without compensation, indigent in civil action. 52 ALR4th 1063.

AIDS infection as affecting right to attend public school. 60 ALR4th 15.

“Guilty but mentally ill” statutes: validity and construction. 71 ALR4th 702.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty. 74 ALR4th 1099.

Availability and scope of punitive damages under state employment discrimination law. 81 ALR5th 367.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct. 96 ALR5th 391.

Class-of-one equal protection claims based upon real estate development, zoning, and planning. 68 ALR6th 229.

What constitutes reverse sex or gender discrimination against males violative of federal constitution or statutes — Nonemployment cases. 166 ALR Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Public employment cases. 168 ALR Fed. 1.

Section 4. Freedom of Religion.

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.

Opinions of attorney general. —

The expenditure of state money in the construction of a hospital operated by a religious nonprofit group under the terms and conditions imposed by the federal government under the Hill-Burton Act is a public purpose and not prohibited by the constitution or laws of Alaska. 1959 Alas. Op. Att'y Gen. No. 19.

There is no school district action which constitutes the establishment of a religion as long as religious organizations are required to follow the same procedures as other groups in renting school buildings for occasional use, and as long as religious organizations are required to pay the same rental fee. 1966 Alas. Op. Att'y Gen. No. 3.

A state employee in a collective bargaining unit who does not belong to an organized religion is entitled to an accommodation of his religious opposition to the payment of union dues. January 13, 1984 Op. Att’y Gen.

Notes to Decisions

Conditions for invoking free exercise clause. —

The free exercise clause may be invoked only where there is a religion involved, only where the conduct in question is religiously based, and only where the claimant is sincere. Frank v. State, 604 P.2d 1068 (Alaska 1979).

It is sufficient that a practice be deeply rooted in religious belief to bring it within the ambit of the free exercise clause and place on the state its burden of justification; absolute necessity is not required. Frank v. State, 604 P.2d 1068 (Alaska 1979).

Absent any indication that parents’ feelings against tuberculosis testing by skin test were connected to a comprehensive belief system, set of practices, or connection to ideas about fundamental matters, summary judgment was proper on their claims that their religious freedom under Alaska Const. art. I, § 4 was violated by 7 AAC 27.213, which required tuberculosis testing through a purified protein derivative (PPD) skin test. Huffman v. State, 204 P.3d 339 (Alaska 2009).

When religiously impelled actions can be forbidden. —

Because of the close relationship between conduct and belief and because of the high value assigned to religious beliefs, religiously impelled actions can be forbidden only where they pose some substantial threat to public safety, peace or order, or where there are competing governmental interests which are of the highest order and which are not otherwise served. Frank v. State, 604 P.2d 1068 (Alaska 1979).

Application of a game regulation to an Athabascan Indian who killed a moose out of season for a religious funeral ritual amounted to an abridgment of his freedom of religion. Frank v. State, 604 P.2d 1068 (Alaska 1979).

Discussion of the civil rights laws regarding discrimination in employment. —

See Bald v. RCA Alascom, 569 P.2d 1328 (Alaska 1977).

Federal act does not deprive state of hearing employment discrimination cases. —

The National Labor Relations Act, under the principle of federal preemption, does not deprive the courts of this state of jurisdiction to hear cases of alleged employment discrimination by either employers or unions on the basis of religion. Bald v. RCA Alascom, 569 P.2d 1328 (Alaska 1977).

Enforcement of housing anti-discrimination statute constitutional. —

Enforcement of AS 18.80.240 does not violate landlord’s constitutional right to the free exercise of his religion under the Alaska (or Federal) Constitution where landlord’s religiously impelled refusal to rent trespasses on the private right of unmarried couples to not be unfairly discriminated against in housing. Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska), cert. denied, 513 U.S. 979, 115 S. Ct. 460, 130 L. Ed. 2d 368 (U.S. 1994).

Consideration of religion in child custody cases. —

Former AS 09.55.205, in specifying that the “religious needs” of the child could be considered in awarding custody, was not unconstitutional on its face. That section was limited to cases where particular religious practices or beliefs posed a substantial threat of or would have resulted in actual physical, emotional or mental injury to the child or would otherwise have a harmful effect on the child in violation of valid state statutes. In addition, the court could consider the actual religious needs of a mature child. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

It is constitutionally permissible for a court to take account of the actual religious needs of a child in awarding custody to one parent or another. Former AS 09.55.205, insofar as it permitted a court to consider the “religious needs” of a minor as an aspect of the child’s “best interest,” did not infringe upon constitutionally protected rights. However, the court had to make a finding that the child had actual, not presumed, religious needs, and that one parent would be more able to satisfy those needs than the other parent. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

By actual religious needs, the supreme court refers to the expressed preference of a child mature enough to make a choice between a form of religion or the lack of it. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

So long as a court makes findings as to a child’s actual needs respecting religion, the court may consider such needs, as one factor, in awarding custody. In such consideration, the court, however, may not substitute its own preferences, either for or against a particular type of religious observance, but must retain a strict neutrality. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

The trial court’s reliance on the religious affiliations of the parties, in the absence of a showing of actual religious needs of the child, constitutes the use of an improper criterion. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Prisoner’s claims under free exercise clause. —

This section did not require a prison to allow hand-holding, kissing, and embracing throughout a visit because they would threaten the state’s compelling interest in maintaining institutional security. Larson v. Cooper, 90 P.3d 125 (Alaska 2004).

Zoning ordinance which excluded all nonpublic schools from a residential area was constitutionally permissible, and city was not compelled to allow plaintiff to operate a parochial school in its church building located in the area. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982).

Duty to accommodate established by Frank v. State, 604 P.2d 1068 (Alaska 1979), is met by a zoning scheme which includes provisions for areas in which parochial schools and other religious uses of land may locate, as the duty of accommodation does not attach to each and every parcel within city’s borders. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982).

Construction of hospital and lease thereof to sectarian order. —

Where a hospital is constructed and a lease made by a city to a sectarian order of the Catholic faith in order to provide for the care of the sick, without regard to race, color, or creed, and thus accomplish a valid public purpose, there is nothing in this arrangement from which it can be inferred that a tax-established, public institution is to be utilized to aid a religious group to spread its faith or to interfere with the religious beliefs of others. The city’s action was not designed, nor does it have the effect by its nature, of promoting or giving a preferred position to whatever religious beliefs the individual members of the corporation might have. The fact that specific sectarian beliefs may be entertained by those persons does not bar the city from achieving its valid secular goal of caring for the sick. Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963).

Applied in

Herning v. Eason, 739 P.2d 167 (Alaska 1987); Eyak Traditional Elders Counsel v. Sherstone, Inc., 904 P.2d 420 (Alaska 1995).

Quoted in

Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979); Marshall v. Munro, 845 P.2d 424 (Alaska 1993).

Collateral references. —

16A Am.Jur.2d, Constitutional Law, §§ 397, 681-688.

16A C.J.S., Constitutional Law, §§ 750 to 788.

Jury service, religious belief as ground for exemption or excuse from. 2 ALR3d 1392.

Prisoners, provision of religious facilities for. 12 ALR3d 1276.

Drugs: free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense. 35 ALR3d 939.

Adoption: religion as factor in adoption proceedings. 48 ALR3d 383.

What constitutes “church,” “religious use” or the like within zoning ordinances. 62 ALR3d 197.

Validity, under establishment of religion clause of federal or state constitution, of making day of religious observance a legal holiday. 90 ALR3d 728.

Regulation of astrology, clairvoyancy, fortune-telling, and the like. 91 ALR3d 766.

Power of court or other public agency to order medical treatment for child over parental objections not based on religious grounds. 97 ALR3d 421.

Validity, under federal and state establishment of religion provisions, of prohibition of sale of intoxicating liquors on specific religious holidays. 27 ALR4th 1155.

Judicial review of termination of pastor’s employment by local church or temple. 31 ALR4th 851.

Liability of religious association for damages for intentionally tortious conduct in recruitment, indoctrination, or related activity. 40 ALR4th 1062.

Validity of local or state denial of public school courses or activities to private or parochial school students. 43 ALR4th 776.

Invasion of privacy by a clergyman, church, or religious group. 67 ALR4th 1086.

Cause of action for clergy malpractice. 75 ALR4th 750.

Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered. 21 ALR5th 248.

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number. 93 A.L.R.5th 1.

First amendment challenges to display of religious symbols on public property. 107 ALR5th 1.

Effect of First Amendment on jurisdiction of National Labor Relations Board over labor disputes involving employer operated by religious entity. 63 ALR Fed. 831.

Validity, construction, and application of provisions of 702 of Civil Rights Act of 1964 (42 USCS 2000e-1) exempting activities of religious organizations from operation of Title VII Equal Employment Opportunity provisions. 67 ALR Fed. 874.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolution theory in public schools. 102 ALR Fed. 537.

Constitutionality of teaching or otherwise promoting secular humanism in public schools. 103 ALR Fed. 538.

Constitutionality of regulation or policy governing prayer, meditation, or “moment of silence” in public schools. 110 ALR Fed. 211.

Bible distribution or use in public schools — modern cases. 111 A.L.R. Fed. 1.

What constitutes “hybrid rights” claim under Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876.163 ALR Fed. 493.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Section 5. Freedom of Speech.

Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.

Notes to Decisions

Analysis

I.General Consideration

Fundamental nature of right. —

Freedom of speech and the correlative freedom of association are fundamental rights which lie at the foundation of our system of government. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Protection under state constitution. —

The Alaska Constitution protects free speech in a more explicit and direct manner than the federal constitution. Messerli v. State, 626 P.2d 81 (Alaska 1980).

The free speech clause of this section was meant to be at least as protective of expression as the 1st amendment to the United States Constitution.Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982).

Right is not absolute. —

In expressing the rights to free speech and privacy, the framers of the state constitution appear to have recognized a right of universal freedom and a right to be left alone which is rooted in the natural inclination of human beings. But these rights, in a free society such as this, have never been recognized as absolute and without limitations. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Right to free association related to ballot design. —

Superior court did not abuse its discretion by denying candidate's requested preliminary injunction because it could have imperiled the public interest in an orderly and timely election; she did not show a clear probability of success on her claim that her rights to free association were violated. Ballot design applied uniformly across candidates and she did not explain how that design, by omitting her nonpartisan voter registration status, prevented voters from associating with her or compelled them to associate with the Democratic Party. State v. Galvin, 491 P.3d 325 (Alaska 2021).

Function of free speech. —

A function of free speech under the American system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Robust debate encouraged. —

Debate on public issues should be uninhibited, robust, and wide-open. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

This nation is most likely to flourish by selecting direction from a multitude of voices engaged in vigorous debate rather than from authoritative selection by government officials. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Independent candidates allowed to run in party's primary elections. —

Political party had an associational right to choose its general election nominees and that right could include allowing independents to run in its primary elections. Because the Alaska Constitution's free association guarantee protects the party's choice to open its primary elections to independent voter candidates, and because in this specific context the State had no countervailing need to enforce the party affiliation rule, the superior court properly ruled in favor of the party in its suit for declaratory and injunctive relief preventing enforcement of the party affiliation rule. State v. Alaska Democratic Party, 426 P.3d 901 (Alaska 2018).

Sufficient injury. —

Denial of the right to fair treatment and the “liberty of expression in appropriate places” is injury enough. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

It is the suppression of speech in itself which is the evil to be avoided for such suppression necessarily impairs the right to speak freely. Any further showing of adverse consequences flowing therefrom is unnecessary. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Regulation, not censorship, allowed. —

While the government may reasonably regulate expressive activity, it may not censor such activity. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Precision of regulation must be the touchstone. —

Because of the “chilling effect” that overbroad laws have on the exercise of constitutional rights, broad prophylactic rules are suspect and precision of regulation must be the touchstone. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

First amendment freedoms are delicate and vulnerable, as well as supremely precious in American society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because first amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Closing-hours restriction in municipal ordinance. —

Closing-hours restriction in a municipal ordinance could not be enforced against adult cabarets in light of the Free Speech Clause of the Alaska Constitution because the closing-hours restriction, as applied to adult cabarets, was not sufficiently narrowly tailored to achieve its ends. Club Sinrock, LLC v. Municipality of Anchorage, 445 P.3d 1031 (Alaska 2019).

And exercise of discretion must be governed by standards. —

Where there are no standards governing the exercise of discretion granted by a disorderly conduct ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for harsh and discriminatory enforcement by prosecuting officials against particular groups deemed to merit their displeasure. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Due process requires a prompt adjudication of 1st amendment rights. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Courts must be ever vigilant to protect the rights of those expounding unpopular views or distributing material thought to be offensive by certain segments of the community. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Freedom of expression is the constitutional norm. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Speech which is vehicle of crime. —

Speech is not constitutionally protected when it is the very vehicle of the crime itself. Webb v. State, 580 P.2d 295 (Alaska 1978).

Speech inciting violence. —

Speech which has a direct tendency to cause immediate acts of violence is not protected. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Public inconvenience, annoyance, or unrest is an insufficient evil to justify punishing speech. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

The 1st and 14th amendments do not permit a state to make criminal the exercise of the right of assembly simply because its exercise may be “annoying” to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is “annoying” because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Mere public intolerance or animosity cannot be the basis for abridgement of constitutional freedoms. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Restraint not mitigated by availability of a alternative means. —

The availability of alternative means of communication does not mitigate the harm resulting from government restraint of speech. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forum doctrine stated. —

Once there exists a government-controlled forum for the dissemination of information and expression of ideas, the government cannot deny equal access to that forum based on content alone. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Public forums are not designated such because they are designed to provide a vehicle for partisan expression; rather, they are so called because they are appropriate arenas for people to exercise their constitutional rights of expression and association. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Distributing pro-life literature to patrons of medical clinic. —

This section did not apply in the case of an individual who was arrested in the parking lot of a medical clinic while distributing pro-life literature to patrons of the clinic because the clinic’s operation was not “public” in nature. Fardig v. Municipality of Anchorage, 785 P.2d 911 (Alaska Ct. App. 1990).

Exclusion of group from government publication. —

The municipality of Anchorage’s exclusion of the Alaska Gay Coalition from the 1976-77 “Anchorage Blue Book,” a government publication, denied that organization its constitutional rights to freedom of speech and association and equal protection of the law. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Blue Book” was designed for and dedicated to expressive and associational use and therefore, once it was opened for such use, the government could not deny appellant access to it based solely on the content of its beliefs. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

The “Anchorage Blue Book,” a municipality publication intended to provide a vehicle for the dissemination of information regarding public and private services and organizations in the Anchorage area was a public forum to which the Gay Coalition had a right of equal access. Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978).

Names on election ballots. —

Primary election statutes, AS 15.25.010 , 15.25.014 , and 15.25.060 , which required each political party to have a separate ballot on which only candidates of that political party appeared, violated the political parties’ associational rights under the First and Fourteenth Amendments, and violated Alaska Const. art. I, § 5 because they substantially burdened the political parties’ rights to determine who could participate in its primary. The state’s justification for imposing the burden was insufficient because most of the state’s interests were too abstract to support that burden; and the remainder of the state’s interests were not closely related to the prohibition on combined ballots. State v. Green Party of Alaska, 118 P.3d 1054 (Alaska 2005).

Ballot access requirements. —

Where there was no evidence that the ballot access requirement in AS 15.25.160 , which was the equivalent of requiring a petition with signatures equal in number to 1 percent of votes cast in last election, caused confusion among voters or any other problem, the increase to a 3 percent minimum, in order to make all ballot access requirements uniform, violated the right of free speech by effectively eliminating a new political party’s access to the ballot. Vogler v. Miller, 651 P.2d 1 (Alaska 1982).

The statutory requirement that a group attain at least three percent of the votes polled in the last gubernatorial election, or register the equivalent number of voters, to be recognized as a political party was constitutional because: (1) The voters were not totally deprived of the opportunity to place candidates on the ballot; (2) the state’s interest in requiring a significant modicum of support was compelling because it helped avoid confusion, deception, and frustration of the democratic process at the general election; and (3) the requirement was sufficiently narrowly tailored to the state’s interests to justify burdening the voters’ rights. Green Party of Alaska v. State, 147 P.3d 728 (Alaska 2006).

Compensation for petition circulators. —

Certification by the Lieutenant Governor of Alaska of the signatures on petitions for an initiative to appear on a ballot was appropriate because the Alaska statute which set a $1 a signature limit on circulator compensation, was unconstitutional as the statute significantly burdened core political speech and was not narrowly tailored to achieve the State of Alaska's interests. Res. Dev. Council for Alaska, Inc. v. Vote Yes for Alaska's Fair Share, 494 P.3d 541 (Alaska 2021).

Ten percent polling requirement for defining “political party”. —

For case holding unconstitutional the definition of “political party” which limited political party status to those organizations able to poll 10 percent of the electorate, see Vogler v. Miller, 660 P.2d 1192 (Alaska 1983), construing AS 15.60.010(20).

Campaign disclosure. —

When there is no showing that an individual must remain anonymous with respect to advertising as to ballot propositions because of the possibility of being subject to reprisals, economic or otherwise, the state campaign disclosure laws, AS 15.13.010 15.13.130 , are not unconstitutional as applied to a contributor hoping to influence the outcome of a ballot issue because the objective of an informed electorate is sufficiently compelling to overcome an interest in anonymous political expression. Messerli v. State, 626 P.2d 81 (Alaska 1980).

An individual’s right of expression in the circumstances of an expenditure in advocating the election or defeat of a particular candidate consists of giving the candidate funds to convey the candidate’s message to the public. But in ballot proposition contests, the message is often the contributor’s own. The contributor exercises the right of free speech directly on his own behalf, addresses whatever he sees as the merits of an issue, expresses his own opinion, and makes his own recommendations to the public. This is the essence of political speech. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Election campaign finance laws. —

The State has a compelling interest that justifies applying AS 15.13.135 , restricting independent expenditures for or against candidates, to business corporations and labor unions. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

AS 15.13.135 as written embraces “non-group” entities whose speech may not be permissibly restricted by an expenditure prohibition, and the section must be read narrowly to prevent it from applying to such “non-group” entities; thus, entities must be exempted from this section’s ban if: (1) they cannot participate in business activities, (2) they have no shareholders who have a claim on corporate earnings, and (3) they are independent from the influence of business corporations. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Alaska has a substantial governmental interest in campaign finance reform that justifies some restriction on First Amendment freedoms, including the ban on contributions by a corporation, company, partnership, firm, association, organization, business trust, surety, or labor union. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The restrictions on contributions and expenditures by corporations and labor unions, considered together, are not so extreme as to constitute bans on issue advocacy. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Attempting to limit outside influences in Alaska politics is a sufficiently compelling state interest to justify the restrictions on contributions by nonresidents set forth in AS 15.13.072(a) , (e), and (f). State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The ban on out-of-district lobbyist contributions in AS 15.13.074(g) is narrowly tailored to further the State’s compelling interest, and the restraint does not foreclose lobbyists from engaging in political speech. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The $500 limitation on individual contributions for electoral campaigns in Alaska set forth in AS 15.13.070(b) is justified by evidence that contribution limits do not place a substantial burden on the ability of candidates to run competitive local or state election campaigns. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Limits on individuals’ contributions to groups and political parties are reasonable; preventing individuals from channeling their contributions through a group or a party, and thus avoiding the limit on individuals’ contributions to candidates, is a valid purpose. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The pre-election contribution limits of former AS 15.13.074(c)(1) , (2), and (3) are invalid, and the eighteen-month contingent pre-election time limits in Laws 1996, ch. 48 § 12 are effective. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The post-election contribution limits of former AS 15.13.074(c)(4) comprise a narrowly-tailored impact on associational rights to further compelling state interests, and are upheld. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The prohibition against making contributions to legislative candidates, including both challengers and incumbents, during a regular legislative session, set forth in former AS 15.13.074(c)(2) , is not narrowly tailored to the State’s compelling interest of preventing corruption or its appearance, and is therefore invalid. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

The State’s interest in preventing avoidance of valid contribution limits by use of carry-forwards is both compelling and served by the restriction set forth in AS 15.13.116 , which is narrowly tailored to accomplish this interest, and justifies its burden on speech. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Because the State has a compelling interest in enforcing contribution limits, and because candidates still retain the right to make contributions from personal funds, the ban on inter-candidate contributions in AS 15.13.112(b)(7) is constitutional. State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (U.S. 2000).

Rights of government officials. —

Plaintiff’s tort claim against the governor based on the free speech clause of the Alaska Constitution lacked merit because a government official has a constitutionally protected right to speak, or write, in response to critical speech. Thoma v. Hickel, 947 P.2d 816 (Alaska 1997).

English-language only. —

First sentence of AS 44.12.320 is unconstitutional because it infringes on the speech rights of private citizens, elected government officials, and government employees; the initiative, a content-based restriction on language, was not narrowly tailored to serve compelling state interests. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007).

Restricting debate on parliamentary motions. —

Ruling that there could be no debate of the motions to open nominations for the position of speaker, to close nominations, and to name a certain representative as speaker of the house did not deny the right to free speech. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

There are various types of motions which are considered not debatable as a matter of parliamentary law, and imposition of rules restricting debate on such motions does not violate constitutional guarantees of free speech. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Regulation of use of state seal. —

Since a statute forbidding the use of the official state seal “for any advertising or commercial purpose” does not impact any non-commercial use of the seal, and since the state has a legitimate governmental interest in regulating the commercial use of that seal, there was no constitutional bar to the prosecution of the defendant for marketing commemorative coins bearing the seal. State v. Robart, 988 P.2d 1114 (Alaska Ct. App. 1999).

Limited restrictions allowed. —

It is only in the most limited circumstances that speech may be punished. Anniskette v. State, 489 P.2d 1012 (Alaska 1971); Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Presumably a state can limit speech or assembly in specific places under limited circumstances. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Barring an inmate's receipt of a computer programming book did not violate a state or federal right because (1) the action was rationally connected to the Department of Corrections' legitimate interest in protecting computer systems, (2) the inmate's right to receive publications was not denied per se, and (3) the inmate was allowed to obtain training on the subject. Antenor v. State, 462 P.3d 1 (Alaska 2020).

Turner approach is appropriate for evaluating free speech claims by prisoners who challenge restrictions on incoming publications, requiring (1) a valid, rational connection between a prison regulation and a legitimate governmental interest put forward to justify the regulation, (2) courts' consideration of the existence of alternative means of exercising the right that remain open to prison inmates, (3) assessment of the impact accommodation of the asserted constitutional right has on guards and other inmates, and (4) the absence of ready alternatives, which is evidence of the reasonableness of a prison regulation, while the existence of such alternatives can indicate the regulation is an exaggerated response to prison concerns. Antenor v. State, 462 P.3d 1 (Alaska 2020).

The state may limit speech in a courtroom while the court is in session. See Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Criminality cannot hinge on ideological vicissitudes of listener. —

Under an objective standard it is not permissible to make criminality hinge upon the ideological vicissitudes of the listener. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

Effect of eliminating speech which is unacceptable to squeamish citizenry. —

Public life in this democracy would be robbed of its vitality and citizens soon lose their self-confident independence of thought if any ordinance were enforced to eliminate any mode of speech not acceptable to the most squeamish of citizens. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Speech must produce clear and present danger of serious substantive evil. —

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

What finally emerges from the “clear and present danger” cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

The “fighting words” doctrine covers those face-to-face utterances which ordinarily provoke, in the average, reasonable listener, an immediate violent response. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

The category of “fighting words” is recognized as another exception to the freedom of speech guaranteed by the constitution. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

A person may be punished for uttering “fighting words” which are likely to provoke a violent reaction when addressed to an ordinary citizen or for intentionally provoking a crowd to hostile reaction under circumstances where a clear and present danger of immediate violence exists. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Coarse words must often be a necessary concomitant to achieving those values which open debate and free speech are designed to serve. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

It is often true that one man’s vulgarity is another’s lyric. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

Telephone call criticizing public officer. —

There was neither legislative language nor constitutional power to read former AS 11.45.030 as including within its ambit a single telephone call critizing a public officer for the performance of his official duties. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

That an officer was personally offended by the telephone call did not render the defendant’s conduct a crime. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

Statements by attorney. —

Imposition of discipline for professional misconduct consisting of statements in letters to two federal officials did not violate an attorney’s right of free speech since obedience to ethical precepts may require absention from what in other circumstances might be constitutionally protected speech. In re Vollintine, 673 P.2d 755 (Alaska 1983).

Gag orders. —

In a child custody hearing, a gag order which goes beyond assuring confidentiality of the file and anonymity of the parties must be justified by compelling circumstances and drawn as narrowly as possible to protect against particular evils. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Jury tampering statute. —

The jury tampering statute, AS 11.56.590 , is not unconstitutionally overbroad, in violation of First Amendment rights, and is not void for vagueness. Turney v. State, 936 P.2d 533 (Alaska 1997).

Motion pictures are protected under freedom of expression guaranteed by the 1st amendment. Hanby v. State, 479 P.2d 486 (Alaska 1970).

The category of obscenity, which is unprotected, is very narrowly defined. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Erotic speech may be punished as obscenity if the tests promulgated by the U.S. supreme court are met. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Online enticement statute, AS 11.41.452 , was not unconstitutionally overbroad and did not violate defendant’s right to free speech because the evidence established that defendant believed that he was soliciting two minors to engage in sexual activities; such conduct did not fall within the boundaries of protected speech. Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013).

Nude dancing is protected under this section of the state constitution. Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982).

City ordinance which prohibited waiters, waitresses and entertainers in establishments serving alcohol from exposing their genitals, buttocks, and, in the case of females, their breasts, was an unconstitutional infringement on free speech. Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982).

Prohibiting display of motorcycle club “colors” in tavern. —

This section did not apply to the proprietor of a tavern, which had posted a sign prohibiting the wearing of motorcycle club “colors”, as well as pimping, prostitution, intoxication, cameras and entry by minors. Johnson v. Tait, 774 P.2d 185 (Alaska 1989).

The mere threat of prosecution can become a stifling prior restraint on free expression. Hanby v. State, 479 P.2d 486 (Alaska 1970).

An affidavit stating merely conclusory opinions of a police officer may not serve as the sole basis for the issuance of a search warrant authorizing the seizure of allegedly obscene films. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Search warrant procedure held insufficient. —

A procedure under which the magistrate who issued the search warrant neither saw the movies himself nor made additional factual investigations of their obscenity was not sufficient to satisfy the constitutional requirements demanding necessary sensitivity to freedom of expression. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Civil disobedience defense in criminal case. —

The district court did not err in rejecting defendant’s defense that violations of commercial fishing laws were acts of civil disobedience where the laws under which he was charged were content neutral as to any expressive element of a violation; they further an important or substantial state interest that is unrelated to the suppression of free expression; any incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest; and they leave open alternative channels for communication of the protest message. Scudero v. State, 917 P.2d 683 (Alaska Ct. App. 1996).

Quoted in

State v. Haley, 687 P.2d 305 (Alaska 1984); Lawson v. Helmer, 77 P.3d 724 (Alaska 2003).

Cited in

Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Sisemore v. U.S. News & World Report, 662 F. Supp. 1529 (D. Alaska 1987); Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987); Burrell v. Disciplinary Bd. of The Alaska Bar Ass'n, 777 P.2d 1140 (Alaska 1989); Beard v. Baum, 796 P.2d 1344 (Alaska 1990); O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); Holding v. Municipality of Anchorage, 63 P.3d 248 (Alaska 2003); State v. Metcalfe, 110 P.3d 976 (Alaska 2005); In re Dist. Court Judge, 392 P.3d 480 (Alaska 2017).

II.Vague and Overbroad

A statute will not be struck down as overbroad when a limiting construction could end the statute’s chilling effect on protected expression. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Discussion of overbreadth doctrine. —

See Holton v. State, 602 P.2d 1228 (Alaska 1979).

Overbreadth and void-for-vagueness doctrines distinguished. —

Although the overbreadth and void-for-vagueness doctrines are related and, at least in the 1st amendment area, not wholly separable, they are functionally and doctrinally distinct. The overbreadth doctrine has evolved to give adequate breathing room to specific 1st amendment freedoms. A vague statute violates the due process clause both because it fails to give adequate notice to the ordinary citizen of what is prohibited and because its indefinite contours confer unbridled discretion on government officials and thereby raise the possibility of uneven and discriminatory enforcement. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Standing to attack for overbreadth. —

A unique feature of an overbreadth challenge is that a person has standing to make such an attack even though it might be constitutionally permissible to regulate that person’s conduct under a more narrowly drawn and specific statute. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Alaska Campaign Disclosure Act (AS 15.13.010 et seq.) is not unconstitutionally vague or overbroad, nor does it violate the constitutional right of the people to privacy. VECO Int'l v. Alaska Pub. Offices Comm'n, 753 P.2d 703 (Alaska 1988).

Former delinquency statute. —

Former statute which criminalized acts “which cause or tend to cause, encourage or contribute to delinquency” was not overbroad, since only speech which advocated imminent lawless action and which was likely to produce such action was proscribed. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Disorderly conduct statute upheld. —

The disorderly conduct statute (AS 11.61.110 ) gives reasonable notice of the conduct it prohibits, and the phrase “unreasonably loud noise” is not unconstitutionally vague. The statute provides that “noise” does not include speech that is constitutionally protected and is therefore not overbroad. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Breach of the peace is an offense so generalized as to be not susceptible of exact definition. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Indefinite statutory language. —

“Threatening,” “tumultuous behavior,” “unreasonable noise,” “offensively coarse,” and “abusive language” are indefinite words. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

The word “annoying” in an ordinance is unconstitutionally vague and the words “inconvenience” and “alarm” are no less so. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

The phrase “opprobrious words or abusive language” in a “breach of the peace” ordinance are both overbroad and impermissibly vague. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Depending on the arresting officer’s temperment, everything from the most provocative insult to the mildest obscenity might be termed “abusive language.” Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

“Tumultuous behavior”. —

The phrase “tumultuous behavior” might encompass conduct ranging from actual violence to speaking in a loud and excited manner. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Criminal defamation statutes held unconstitutional. —

In holding former AS 11.15.310 — 11.15.330 to be unconstitutionally vague the supreme court did not decide whether all conceivable criminal libel statutes are necessarily vague. If the type of defamation sought to be prohibited receives a narrowly drawn statutory definition, especially one designed to reach words tending to cause a breach of the peace, then such a statute might well be proper. Gottschalk v. State, 575 P.2d 289 (Alaska 1978).

Even if the former criminal defamation statutes were sufficiently precise to escape the defect of vagueness, they would still have been overbroad. That is because truth was not an absolute defense under former AS 11.15.320, but a conditional one; the accused had to show not only that what he said was true, but that his intentions were good when he said it. Gottschalk v. State, 575 P.2d 289 (Alaska 1978).

Former AS 11.15.134(a) did not implicate constitutional rights of adults. —

Since former AS 11.15.134(a), which made it a crime to commit a lewd or lascivious act upon or with the body of a child under 16 years of age, intending to arouse the sexual desires of either the actor or the child, prohibited only lewd and lascivious physical contact with children, that section did not implicate the constitutional right of adults to possess and exhibit literature or the right of adults to privacy in their homes at least insofar as that right protects parents dressing in front of children, those who tell dirty jokes, and adults who are passionately affectionate with other adults in the presence of children. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Former disorderly conduct statute could not be applied to behavior which is constitutionally exempt from criminal prohibition. Anniskette v. State, 489 P.2d 1012 (Alaska 1971).

The supreme court has recognized the strong likelihood that former AS 11.45.030, which made disorderly conduct and disturbance of the peace a misdemeanor, as it existed prior to the 1973 amendment, was overbroad in that constitutionally protected speech and conduct might have fallen within its prohibitions. Poole v. State, 524 P.2d 286 (Alaska 1974).

When ordinance is void-for-vagueness. —

An ordinance is void-for-vagueness where it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and where it encourages arbitrary and erratic arrests and convictions. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Those generally implicated by the imprecise terms of a disorderly conduct ordinance — poor people, nonconformists, dissenters, idlers — may be required to comport themselves according to the lifestyle deemed appropriate by the police and the courts. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Ordinances held unconstitutional. —

Those portions of a disorderly conduct ordinance which could be applied to protected speech — “threatening,” “tumultuous behavior,” “unreasonable noise,” “offensively coarse utterance, gesture, or display” and “addressing abusive language to any person present” — are unconstitutionally overbroad. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

An ordinance making it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . .” is not only overbroad but also unconstitutionally vague. Since conduct that annoys some people does not annoy others, men of common intelligence must necessarily guess at the ordinance’s meaning. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

An ordinance prohibiting “threatening and violent or tumultuous behavior,” “unreasonable noise,” “abusive lanugage” and “offensively coarse utterances, gestures or displays” when motivated by an intent to cause “public inconvenience, annoyance or alarm,” thereby making it a crime for one, with intent to cause public embarrassment, uneasiness, annoyance, discomfort, or fear, to engage in conduct that is noisy, disorderly, causing or evidencing mental or emotional excitement, or, with like intent, to use language that is vulgar, indelicate, distasteful, insulting or reproachful is unconstitutional. Neither the federal nor Alaska constitutions will permit such a broad and arbitrary interference with freedom of speech. Marks v. Anchorage, 500 P.2d 644 (Alaska 1972).

Collateral references. —

16A Am.Jur.2d, Constitutional Law, §§ 465-553; 50 Am.Jur.2d, Libel and Slander, § 30.

16B C.J.S., Constitutional Law, §§ 789 to 835; 53 C.J.S., Libel and Slander, §§ 20, 21.

Modern concept of obscenity. 5 ALR3d 1158.

Participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly or similar offense. 32 ALR3d 551.

Validity of blasphemy statutes or ordinances. 41 ALR3d 519.

Right of accused to have press or other media representatives excluded from criminal trial. 49 ALR3d 1007.

Picketing court or judge as contempt. 58 ALR3d 1297.

Consumer picketing to protest products, prices or services. 62 ALR3d 227.

Validity, construction, and effect of statutes or ordinances prohibiting the sale of obscene materials to minors. 93 ALR3d 297.

Actionability of false newspaper report that plaintiff has been arrested. 93 ALR3d 625.

Libel by newspaper headlines. 95 ALR3d 660.

Privilege of newsgatherer against disclosure of confidential sources or information. 99 ALR3d 37.

Gesture as punishable obscenity. 99 ALR3d 762.

Propriety of conditioning probation on defendant’s not associating with particular person. 99 ALR3d 967.

Rights of attorneys leaving firm with respect to firm clients. 1 ALR4th 1164.

Validity and construction of statutes or ordinances prohibiting or restricting distribution of commercial advertising to private residences — modern cases. 12 ALR4th 851.

Validity, propriety, and effect of allowing or prohibiting media’s broadcasting, recording, or photographing court proceedings. 14 ALR4th 121.

Insulting words addressed directly to police officer as breach of peace or disorderly conduct. 14 ALR4th 1252.

Liability of commercial printer for defamatory statement contained in matter printed for another. 16 ALR4th 1372.

Liability for personal injury or death allegedly resulting from television or radio broadcast. 20 ALR4th 327.

Libel and slander: reports of pleadings as within privilege for reports of judicial proceedings. 20 ALR4th 576.

Validity, construction, and effect of statutes, ordinances, or regulations prohibiting or regulating advertising of intoxicating liquors. 20 ALR4th 600.

Libel and slander: attorney’s statements, to parties other than alleged defamed party or its agents, in course of extrajudicial investigation or preparation relating to pending or anticipated civil litigation as privileged. 23 ALR4th 932.

Defamation: loss of employer’s qualified privilege to publish employee’s work record or qualification. 24 ALR4th 144.

Validity and application of statute authorizing forfeiture of use or closure of real property from which obscene materials have been disseminated or exhibited. 25 ALR4th 395.

State constitutional protection of allegedly defamatory statements regarding private individual. 33 ALR4th 212.

Libel and slander: privileged nature of statements or utterances by members of governing body of public institution of higher learning in course of official proceedings. 33 ALR4th 632.

Validity and construction of terroristic threat statutes. 45 ALR4th 949.

Validity and construction of state court’s order precluding publicity or comment about pending civil case by counsel, parties, or witnesses. 56 ALR4th 1214.

False light invasion of privacy — Cognizability and elements. 57 ALR4th 22.

False light invasion of privacy — Defenses and remedies. 57 ALR4th 244.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — post-New York Times cases. 57 ALR4th 404.

Libel or slander: Defamation by statement made in jest. 57 ALR4th 520.

Intrusion by news-gathering entity as invasion of right of privacy. 69 ALR4th 1059.

Standing of media representatives or organizations to seek review of, or to intervene to oppose, order closing criminal proceedings to public. 74 ALR4th 476.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional right. 76 ALR4th 536.

Validity of ordinances restricting location of “adult entertainment” or sex-oriented businesses. 10 ALR5th 538.

Propriety of exclusion of press or other media representatives from civil trial. 39 ALR5th 103.

Propriety of publishing identity of sexual assault victim. 40 ALR5th 787.

Validity, construction and application of statutes or ordinances regulating sexual performance by child. 42 ALR5th 291.

First Amendment protection afforded to commercial and home video games. 106 ALR5th 337.

First amendment challenges to display of religious symbols on public property. 107 ALR5th 1.

First Amendment protection afforded to comic books, comic strips, and cartoons. 118 ALR5th 213.

Construction and Application of Libel-Proof Doctrine. 54 ALR6th 165.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Construction and application of Supreme Court’s holding in Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) that government may not prohibit independent and indirect expenditures on political speech, 65 ALR6th 503.

Constitutionality of restricting public speech in street, sidewalk, park, or other public forum — characteristics of forum, 70 ALR6th 513.

Constitutional challenges to compelled speech — general principles, 72 ALR6th 513.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 ALR6th 89.

Right of press, in criminal proceeding, to have access to exhibits, transcripts, testimony, and communications not admitted in evidence or made part of public record. 39 ALR Fed. 871.

Validity, under First Amendment and 42 USC 1983, of public college or university’s refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus. 50 ALR Fed. 516.

Access of public to broadcast facilities under first amendment. 66 ALR Fed. 628.

Action under 42 USC 1985(1) for conspiracy to defame or otherwise harm the reputation of federal official. 69 ALR Fed. 913.

What oral statement of student is sufficiently disruptive so as to fall beyond protection of first amendment. 76 ALR Fed. 599.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolution theory in public schools. 102 ALR Fed. 537.

Constitutionality of teaching or otherwise promoting secular humanism in public schools. 103 ALR Fed. 538.

First amendment protection for law enforcement employees subject to discharge, transfer, or discipline because of speech. 109 ALR Fed. 9.

Application of First Amendment in school context — Supreme Court cases. 57 ALR Fed. 2d 1.

Section 6. Assembly; Petition.

The right of the people peaceably to assemble, and to petition the government shall never be abridged.

Cross references. —

See notes to Alaska Const., art. I, § 5.

Notes to Decisions

Forced association. —

A project labor agreement, approved by a borough for a construction project, requiring workers to pay dues and fees required by unions did not violate the right of nonunion employees to be free of “forced association.” Laborers Local # 942 v. Lampkin, 956 P.2d 422 (Alaska 1998).

Alleged violation not flagrant. —

Trial court properly dismissed plaintiff former assemblyman’s implied constitutional tort cause of action under Alaska Const. art. I, § 6 because plaintiff did not allege that he was actually prevented from petitioning the government; rather, only that defendants intended to discourage future petitioners like himself. Even assuming that all of plaintiff’s assertions were true, the constitutional violation he alleged, if there was one at all, was not “flagrant.” Lowell v. Hayes, 117 P.3d 745 (Alaska 2005).

English-language only. —

First sentence of AS 44.12.320 is unconstitutional because it infringes on the speech rights of private citizens, elected government officials, and government employees. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007).

Quoted in

Holton v. State, 602 P.2d 1228 (Alaska 1979); Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Cited in

McBirney & Assocs. v. State, 753 P.2d 1132 (Alaska 1988); Pepper v. Routh Crabtree, APC, 219 P.3d 1017 (Alaska 2009).

Collateral references. —

16A Am.Jur.2d, Constitutional Law, § 554 et seq.

16 C.J.S., Constitutional Law, § 352.

Participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly or similar offense. 32 ALR3d 551.

Trespass: state prosecution for unauthorized entry or occupation, for public demonstration purposes, of business, industrial, or utility premises. 41 ALR4th 773.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Section 7. Due Process.

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.

Cross references. —

See notes to Alaska Const., art. I, §§ 5 and 11.

Opinions of attorney general. —

The Board of Fish and Game may provide for area licensing under the provisions of the state constitution. 1959 Alas. Op. Att'y Gen. No. 28.

AS 09.65.210 can be amended to limit the issuance of state tidelands leases for fisheries development to residents of Alaska. 1983 Alas. Op. Att'y Gen. No. 03.

Notes to Decisions

Analysis

I.General Consideration

Section prohibits deprivation without due process. —

Both this section and the 14th amendment of the United States Constitution prohibit the state from depriving any person of “life, liberty, or property, without due process of law.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Borough was not a “person” and therefore could not assert due process or equal protection claims against its creator, the state. The purpose of the Alaska due process and equal protection clauses is to protect people from abuses of government, not to protect political subdivisions of the state from the actions of other units of state government. Kenai Peninsula Borough v. State, Dep't of Cmty. & Reg'l Affairs, 751 P.2d 14 (Alaska 1988).

Standing. —

Legislators did not have standing to bring suit against a legislative committee and an investigator in an attempt to halt an allegedly politically motivated investigation into the governor’s dismissal of the public safety commissioner. They were not directly affected by the investigation and had suffered no injury to their own interests. Keller v. French, 205 P.3d 299 (Alaska 2009).

While appellant may have had opportunities to present evidence that showed he met the standing criteria with respect to a planning commission's approval of a conditional use permit, appellant had no reason to seek to present such evidence because he had no notice that standing was at issue. Because appellant did not have notice that his standing was at issue, his due process rights were violated. Griswold v. Homer Bd. of Adjustment, 426 P.3d 1044 (Alaska 2018).

Identification of the specific dictates of due process generally involves consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the government’s interest including the fiscal and administrative burdens that additional or substitute procedural requirements would entail. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Alaska Housing Finance Corporation foreclosure. —

Alaska Housing Finance Corporation's (AHFC) foreclosure process violated a mortgagor's due process rights under the Alaska Constitution because the process gave the mortgagor no pre-deprivation chance to be heard, as (1) an AS 34.20.070(b) default notice gave no such opportunity, (2) abilities to cure and talk to a customer service representative did not suffice, (3) a trustee's duties were no chance to be heard, (4) a Fair Debt Collection Practices Act notice gave no chance to state objections to a decision-maker able to rectify errors, (5) the mortgagor's post-deprivation ability to sue was inadequate, and (6) prejudice was presumed from a complete hearing denial. Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Due process right to protect juvenile offender status. —

Superior court erred in granting the State's waiver petition because defendant juvenile had a due process right to present evidence at the waiver hearing to protect his juvenile offender status and avoid being waived to adult court; minors alleged to have violated Alaska's criminal laws, including those for whom the State is seeking to waive juvenile jurisdiction, have a liberty interest in juvenile status. C.D. v. State, 458 P.3d 81 (Alaska 2020).

For the due process clause to apply, there must be state action and the deprivation of an individual interest of sufficient importance to warrant constitutional protection. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); State, Dep't of Nat. Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806 (Alaska 1978).

Termination of parental rights.—

Mother's contention that the appearance of judicial partiality violated her due process rights was rejected because, although the trial court may have exhibited partiality related to whether substance abuse continued to substantially impair the mother's ability to parent, that only impacted one of the grounds for termination of the mother's parental rights. The mother's ability to be heard and adequately represent her interests with respect to the domestic violence and mental illness findings was not prejudiced, and the child's best interests would not be served by delaying permanency and prolonging the judicial proceedings given that the mother had yet to remedy the conduct or conditions that made him a child in need of aid. Sarah A. v. State Dep't of Health & Soc. Servs., Office of Children Servs., 427 P.3d 771 (Alaska 2018).

Determining entitlement is preliminary to determining extent of protection. —

Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

The nature of protection due depends on the extent to which an individual will be “condemned to suffer grievous loss.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Individual’s interest to be balanced against state’s. —

The finding of a deprivation of a property right does not conclude a due process analysis; the assessment of what process is due requires a balancing of the individual’s interest against the state’s justification for its enactment. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Whenever a party demonstrates a prima facie denial of due process of law, the reviewing court must balance the interest of the state in the act or procedure challenged against the right denied the individual. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

What procedural due process may require under any particular set of circumstances depends on the nature of the governmental function involved and the private interest affected by the governmental action. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

Transportation to civil actions. —

Superior court did not abuse its discretion by denying a prisoner's request for transport to attend in person the prisoner's parental rights termination trial because the court considered all relevant factors that the parties presented to the court, because it was not obvious that considering additional factors in the case law would have changed the court's statutory analysis, and because the prisoner's due process rights were not violated. Alex H. v. Dep't of Health & Soc. Servs., Office of Children's Servs., 389 P.3d 35 (Alaska 2017).

Relationship to legitimate government purpose. —

Under the Alaska Constitution, substantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose. State v. Rice, 626 P.2d 104 (Alaska 1981).

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. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977); In re C.L.T., 597 P.2d 518 (Alaska 1979); Flores v. Flores, 598 P.2d 893 (Alaska 1979).

The term “due process of law” is not susceptible of precise definition or reduction to a mathematical formula. But in the course of judicial decisions it has come to express a basic concept of justice under law. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

The term “due process of law” is not susceptible of precise definition or reduction to a mathematical formula. But in the course of judicial decisions it has come to express a basic concept of justice under law, such as “our traditional conception of fair play and substantial justice,” the “protection of the individual from arbitrary action,” “fundamental principles of liberty and justice,” whether there has been a “denial of fundamental fairness, shocking to the universal sense of justice,” “that whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct,” and a “respect for those personal immunities which are so rooted in the traditions and consciences of the nation as to be ranked as fundamental, or are implicit in the concept of ordered liberty.” Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Courts have not attempted to define with precision the words “due process of law.” Probably this is so because that term asserts a fundamental principle of justice, rather than a specific rule of law, and thus is not susceptible of more than a general statement. Territory v. Craig Enters., 355 P.2d 397 (Alaska 1960).

But it has come to express a basic concept of justice under the law in the course of judicial decisions. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Certain level of procedural fairness must be accorded. —

When principles of due process attach, there is a certain level of procedural fairness that must be accorded to an affected party. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Due process requirements. —

While it is manifest that no one has a vested right in any particular mode of procedure such that legislative change is prohibited, due process does require that a substantial and efficient remedy remains available or that one be provided when a preexisting defense is statutorily limited. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

Regulatory Commission of Alaska’s refusal to recuse a staff economist did not deny pipeline owners a fair and impartial hearing in violation of due process, based on the economist’s prejudgment of the issues in an unpublished master’s thesis. There was no evidence suggesting that the commissioners were improperly influenced by the economist’s opinions or that any commissioner prejudged the case. Amerada Hess Pipeline Corp. v. Regulatory Comm'n of Alaska, 176 P.3d 667 (Alaska 2008).

Federal law does not pre-empt rigor of due process requirements. —

Federal law does not preclude the Alaska Constitution from providing more rigorous protections for the due process rights of Alaskans. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Vested property rights are protected against state action by the provision of the 14th amendment of the federal constitution and by this section. Bidwell v. Scheele, 355 P.2d 584 (Alaska 1960); Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, 580 P.2d 687 (Alaska 1978), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Because the plaintiff had a vested property right in her junkyard in that it was a lawful use within the original zoning district, and it only became a nonconforming use when the district was rezoned rural residential, her right in operating her junkyard could not be denied her without due process of law. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Due process applies to both privileges and rights. —

The United States supreme court has repeatedly refused to recognize a distinction between privileges and rights in determining the applicability of due process. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Broader protection than federal counterpart. —

Alaska’s equal protection and due process clauses confer broader protection than do their federal counterparts. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Formalistic categorization as “criminal” or “civil” avoided. —

The supreme court has consistently avoided any formalistic categorization of proceedings as “criminal” and “civil” when determining if strict due process safeguards are required. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Municipalities as well as other occupants are entitled to due process in the adjudication of claims to tide and submerged lands. Homer v. State, Dep't of Nat. Res., 566 P.2d 1314 (Alaska 1977).

Alaska is not limited by federal case law or constitution. —

The Supreme Court is not limited by the decisions of the United States supreme court or by the federal constitution when interpreting the provisions of the state constitution, since the latter may have broader safeguards than the minimum federal standards. Shagloak v. State, 597 P.2d 142 (Alaska 1979).

Review to assure that trier of fact was impartial. —

The scope of review to assure due process must include a review to assure that the trier of fact was an impartial tribunal. In re Robson, 575 P.2d 771 (Alaska 1978).

An impartial tribunal is basic to a guarantee of due process. In re Robson, 575 P.2d 771 (Alaska 1978); Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

Judicial review of agency actions. —

Even though a legislative enactment providing for agency action may not provide for judicial review, the courts may proceed to review such action where it is alleged that such action constitutes a denial of due process. Johns v. Commercial Fisheries Entry Comm'n, 699 P.2d 334 (Alaska 1985).

The scope of review of an administrative decision to assure compliance with due process under Alaska law is more limited than the broad form of review required under the Alaska Administrative Procedure Act ( AS 44.62). The safeguard which due process assures is not that a court may examine each factual finding to see that it is correct, or even that it is supported by substantial evidence. Rather, the supreme court will review to assure that the trier of fact was an impartial tribunal, that no findings were made except on due notice and opportunity to be heard, that the procedure at the hearing was consistent with a fair trial, and that the hearing was conducted in such a way that there is an opportunity for a court to ascertain whether the applicable rules of law and procedure were observed. The review of factual determinations becomes a review to find whether the administrative decision has passed beyond the lowest limit of the permitted zone of reasonableness to become capricious, arbitrary or confiscatory. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

The supreme court would not be able to carry out its duty to protect the citizens of this state in the exercise of their rights if it was unable to review the actions of administrative agencies simply because the legislature chose to exempt their decisions from judicial review. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

If an administrative action is questioned as violating, for example, the due process clause, the supreme court will not hesitate to review the propriety of the action to the extent that constitutional standards may require. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

It is the constitutionally vested duty of the supreme court to assure that administrative action complies with the laws of Alaska. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

Adjudicative proceedings to be impartial. —

Adjudicative proceedings must have the appearance, as well as the fact, of impartiality. Coffey v. State, 585 P.2d 514 (Alaska 1978), stating that standards for disqualification of judge under AS 22.20.020(a)(6) are subject to appellate review.

Right to an automatic appeal, as a matter of due process, is not required by the federal or Alaska constitution. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Waiver of rights. —

By consenting to certain procedures or by failing to object to others, a party may waive those rights which are arguably encompassed within due process guarantees. In re C.L.T., 597 P.2d 518 (Alaska 1979).

In a proceeding to terminate parental rights, the failure of the parent’s counsel to object to the judge’s use of taped testimony waived any alleged due process defects in the procedure. In re C.L.T., 597 P.2d 518 (Alaska 1979).

Involuntary commitment. —

Superior court properly rejected simply releasing defendant, and that left only the jail as the immediately available least restrictive alternative for his protection while he was detained awaiting transport; the social worker explicitly testified that she did not believe that defendant had any social supports. In re Necessity for the Hospitalization of Vern H., 486 P.3d 1123 (Alaska 2021).

Fact that defendant was held in jail rather than a hospital did not alter the due process analysis because the detention location was relevant only to whether it was the least restrictive available alternative. In re Necessity for the Hospitalization of Vern H., 486 P.3d 1123 (Alaska 2021).

Underlying claim barred by collateral estoppel. —

The director and president of a bank seized pursuant to AS 06.05.470 could not argue on appeal that the state’s failure to provide a post-seizure hearing violated his due process rights because his underlying substantive claim, that the bank’s business was not being conducted in an unsound manner and the state’s seizure was therefore unauthorized, was barred by the doctrine of collateral estoppel as the issue had already been litigated in a related action, adverse to plaintiff, between the plaintiffs and the FDIC. Hoffman v. State, Dep't of Commerce & Econ. Dev., 834 P.2d 1218 (Alaska 1992).

Applied in

Morris v. State, 630 P.2d 13 (Alaska 1981); Jeffcoat v. State, 639 P.2d 308 (Alaska Ct. App. 1982); State v. F/V Baranof, 677 P.2d 1245 (Alaska 1984); Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988).

Quoted in

State v. Browder, 486 P.2d 925 (Alaska 1971); Graham v. State, 633 P.2d 211 (Alaska 1981); Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981); Public Safety Employees Ass'n v. State, 658 P.2d 769 (Alaska 1983); Beam v. Adams, 749 P.2d 366 (Alaska 1988); Silvernail v. State, 777 P.2d 1169 (Alaska Ct. App. 1989); O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); Mitchell v. State, 818 P.2d 1163 (Alaska Ct. App. 1991); Odum v. University of Alaska, 845 P.2d 432 (Alaska 1993); Underwood v. State, 881 P.2d 322 (Alaska 1994); DeRemer v. State, 307 P.3d 975 (Alaska 2013); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019).

Cited in

Ravin v. State, 537 P.2d 494 (Alaska 1975); Ferdinand v. City of Fairbanks, 599 P.2d 122 (Alaska 1979); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); King v. Alaska State Hous. Auth., 633 P.2d 256 (Alaska 1981); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Koch v. State, 653 P.2d 664 (Alaska Ct. App. 1982); Jordan v. State, 681 P.2d 346 (Alaska Ct. App. 1984); J.E.C. v. State, 681 P.2d 1358 (Alaska Ct. App. 1984); Smith v. State, 717 P.2d 402 (Alaska Ct. App. 1986); Constantine v. State, 739 P.2d 188 (Alaska Ct. App. 1987); Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988); Thiel v. State, 762 P.2d 478 (Alaska Ct. App. 1988); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Schmidt v. Beeson Plumbing & Heating, 869 P.2d 1170 (Alaska 1994); Gilmore v. Alaska Workers' Comp. Bd., 882 P.2d 922 (Alaska 1994); Raphael v. State, 994 P.2d 1004 (Alaska 2000); Evans v. State, 56 P.3d 1046 (Alaska 2002); Pease v. State, 54 P.3d 316 (Alaska Ct. App. 2002); Scammon Bay Ass'n v. Ulak, 126 P.3d 138 (Alaska 2005); Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371 (Alaska 2007); Huffman v. State, 204 P.3d 339 (Alaska 2009); Vanvelzor v. Vanvelzor, 219 P.3d 184 (Alaska 2009); Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012); Brewer v. State, 341 P.3d 1107 (Alaska 2014); RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056 (Alaska 2015); Sanders v. State, 364 P.3d 412 (Alaska 2015).

II.Application
A.In General

Counting write-in votes. —

Manual count of write-in votes complied with AS 15.15.030 , and did not violate the nominee’s right to equal protection; the methodology used was applied to every precinct, and all ballots and candidates were given equal treatment. Miller v. Treadwell, 245 P.3d 867 (Alaska 2010).

Long-arm statute construed. —

See notes to AS 09.05.015 , Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980); Kennecorp Mortgage & Equities v. First Nat'l Bank, 685 P.2d 1232 (Alaska 1984).

The fundamental requisite of due process of law is the opportunity to be heard. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Family association. —

In a probation revocation case, an argument that restrictions on defendant's ability to see his children or to attend church with his family violated his right to religious freedom or family association resulted in a remand directing the sentencing judge to consider whether the restrictions represent the least-restrictive alternatives. While it might have been appropriate for the court to delegate aspects of implementation to the probation officer, the judge should have defined a structure in which the probation officer's discretion was exercised. Binder v. State, — P.3d — (Alaska Ct. App. Mar. 30, 2016) (memorandum decision).

Disqualification of judge for bias. —

The test for whether a new judge is needed is not only actual bias but such a likelihood of bias or an appearance of bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of the accused. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Waiver of right to change judge. —

The requirement in Civ. R. 42(c)(4) of a knowing waiver of the right to change a particular judge requires that waiver can be found only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial. Any other interpretation would be inconsistent with the apparent reason for this scienter requirement and with the due process right to a fair and impartial trial judge which Alaska’s peremptory challenge provisions are designed to liberally ensure. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Prospective jurors shall be selected by court officials. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Discussion of selection without systematic and intentional exclusion of any groups. —

See Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross section of the community. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Exclusion from jury in criminal cases. —

See note under catchline “Purposeful and systematic exclusion must be shown to invalidate jury,” analysis line II F “Criminal Proceedings.” Kimble v. State, 539 P.2d 73 (Alaska 1975).

Waiver of right to be absent from trial. —

Defendant’s constitutional right to be present at trial did not give him an absolute constitutional right to waive that right. Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013).

If it appeared that the jury selected for a person’s trial would not be “impartial” in the constitutional sense, because not truly representative of the community where the person was to be tried, then the person could make a valid argument that he was not accorded due process of law. Bachner v. Pearson, 479 P.2d 319 (Alaska 1970).

Amendment to AS 09.20.050 . —

A determination of the method for selecting juries is a matter within the legislative prerogative, and the 1969 amendment to AS 09.20.050 was a lawful exercise of legislative authority. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Discussion of applicability of “fair cross section” standard to civil jury selections. —

See Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

When contemnor entitled to jury trial. —

Ordinarily a contemnor is entitled to a jury trial only when incarceration is a possible sanction for his misbehavior. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Give warning before finding of contempt. —

Trial court’s failure to give an attorney warning before finding him in contempt was violative of his right to due process. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

A warning is desirable before punishing all but “flagrant” contempts, since: (1) It may prevent further disorder; (2) it assures the court that the subsequent conduct will be willfully contemptuous and deserving of punishment; and (3) it reduces the risk that attorneys will be deterred by fear of punishment from exercising zealous advocacy. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Summary punishment for contempt found improper. —

Where the trial court convicted and sentenced an attorney for contempt after it had granted a mistrial and the panel of prospective jurors had been dismissed, since the sentence was imposed after the proceeding, the rationale for summary punishment did not exist and notice and hearing on the charges should have been granted. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977).

Imposition of probation conditions without prior notice. —

Alaska Department of Corrections did not propose six of the general conditions of probation that were imposed in the trial court’s written judgment after oral conditions had been announced; imposition of those conditions without prior notice to defendant and without giving defendant an opportunity to be heard violated defendant’s due process rights. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Appeal of class action. —

All a class member need do in order to appeal a class action decision of the Alaska State Commission for Human Rights is to demonstrate that his claim is typical, and that he would adequately represent the class on appeal. Adams v. Pipeliners Union 798, 699 P.2d 343 (Alaska 1985).

Suspension of doctor’s hospital privileges. —

A hospital may summarily suspend a doctor’s privileges if the suspension is in the best interests of patient care and the doctor is afforded a hearing within a reasonable time after the suspension. Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

A hospital erred in suspending a doctor’s privileges without a finding of gross negligence as required by its bylaws. Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

Offset of medical malpractice award. —

Reducing medical expenses paid by prevailing malpractice plaintiff’s insurer from the jury’s medical expenses award, under AS 09.55.548(b) , is a reasonable legislative response to a perceived malpractice insurance crisis, and does not violate substantive due process rights. Reid v. Williams, 964 P.2d 453 (Alaska 1998).

Combination of prosecutorial and adjudicative functions. —

Due process requires some separation between those persons prosecuting a complaint and those adjudicating it; the prosecutor, who has a “probable partiality,” should not be in a position to influence the decision makers. There may, however, be some combination of these functions within a particular agency. In re Walton, 676 P.2d 1078 (Alaska 1983).

When the functions of investigating, prosecuting, and judging have been combined in the same person, due process has been violated. Storrs v. Lutheran Hosps. & Homes Soc'y, 609 P.2d 24 (Alaska 1980).

When an administrative official has participated in the past in any advocacy capacity against the party in question, fundamental fairness is normally held to require that the former advocate take no part in rendering the decision. The purpose of this due process requirement is to prevent a person with probable partiality from influencing the other decision-makers. In re Robson, 575 P.2d 771 (Alaska 1978).

The combination of investigative and judicial functions within an agency does not violate due process; a board may make preliminary factual inquiry on its own in order to determine if charges should be filed. In re Robson, 575 P.2d 771 (Alaska 1978).

Combination of judicial and investigative functions in the Commission on Judicial Qualifications under Commission Rule 5(a) did not violate a superior court judge’s due process rights under either the federal or Alaska constitutions. In re Hanson, 532 P.2d 303 (Alaska 1975).

Due process is not offended by the Commission on Judicial Qualifications having the option under Commission Rule 9 to hear the matter itself or to refer the charges to a master for a hearing. In re Hanson, 532 P.2d 303 (Alaska 1975).

Neither considerations of procedural due process nor the rules of procedure of the Commission on Judicial Qualifications provide for separate hearing on the question of the appropriateness of any given sanction. In re Hanson, 532 P.2d 303 (Alaska 1975).

The Alaska Transportation Commission’s use of a hearing officer alone, without the presence of the individual commissioners, violates neither the applicable state statutes nor constitutional due process. Alaska Transp. Comm'n v. Gandia, 602 P.2d 402 (Alaska 1979).

Handling of information by public utilities commission unconstitutional. —

Where both the city of Fairbanks and a corporation sought a certificate of public convenience and necessity to provide telephone service, and the commission ruled that information that the commission requested from the corporation was proprietary and should be kept confidential and did not allow any representative of Fairbanks to see it but a commission staff member saw the information and used it at the determination hearing, the commission’s handling of the information violated procedural due process. City of Fairbanks v. Alaska Pub. Utils. Comm'n, 611 P.2d 493 (Alaska 1980).

Due process not denied where assembly and adjustment board members the same. —

Where the borough assembly sat as a legislative body when it enacted both a grandfather rights ordinance and an ordinance that resulted in the rezoning of the plaintiff’s property, and where it properly sat as a board of adjustment when it revoked the plaintiff’s grandfather rights, the mere fact that the board of adjustment comprised the same members as the assembly did not amount to a denial of due process. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Summary judgment. —

Granting an insurer's summary judgment motion in an insured's action against the insurer did not violate the insured's right to a jury trial because (1) it was well-established that summary judgment did not violate this right, and (2) the insured declined to follow a trial court's advice to contest the motion by filing an affidavit. Patterson v. Infinity Ins. Co., — P.3d — (Alaska Apr. 13, 2016) (memorandum decision).

Bar rule requiring graduation from ABA-accredited law school. —

Given the strong state interest in assuring that those entering the practice of law have had suitable training in adequate institutions, and considering the precedent from other jurisdictions, the supreme court finds that the Alaska bar rule requirement that a bar applicant be a graduate of an American Bar Association-accredited law school, Alaska Bar Rule 2, § 1(b), is valid and does not violate the due process clause of either the Alaska Constitution or the United States Constitution. In re Urie, 617 P.2d 505 (Alaska 1980).

While there is some risk that a person could be deprived of the opportunity to practice law by reason of Alaska Bar Rule I-2, § 1(b), which requires that a bar applicant be a graduate of an American Bar Association-accredited law school, even though he is competent to practice law, such a risk is outweighed by the difficulty which would be presented by making a case-by-case determination of whether the education afforded by an unaccredited law school was comparable to that given by an accredited school. In re Urie, 617 P.2d 505 (Alaska 1980).

Regrading procedures on bar examination. —

Regrading of the California essay portion of the Alaska Bar Exam by Alaska graders, where California graders gave an overall score of 65 — 70 percent, constitutes a reasonable procedure even though no similar regrading procedure exists for Alaska essays; the procedure is consistent with the Board of Governors of the Alaska Bar Association’s broad grant of authority to examine and grade applicants for admission to the Alaska Bar, and satisfies the requirements of equal protection. In re Butterfield, 581 P.2d 1109 (Alaska 1978).

Disciplinary board of Alaska Bar Association. —

The Alaska Bar Rules do not allocate responsibility in disciplinary matters in such a way that there is an impermissible commingling of prosecutorial and adjudicatory functions, although proceedings conducted pursuant to these rules may be subject to attack where there is a commingling of such functions. In re Walton, 676 P.2d 1078 (Alaska 1983).

The disciplinary board is not improperly constituted because one of its members was employed by the department of law in the civil section of the attorney general’s office before the disciplinary proceedings were initiated, when the district attorney sought an indictment against the attorney for the same conduct (preparing false evidence). In re Walton, 676 P.2d 1078 (Alaska 1983).

Disbarment. —

As to disbarment, due process requires only that an attorney have reasonable notice of the charges against him and a reasonable opportunity to be heard in his defense. In re Mackay, 416 P.2d 823 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S. Ct. 1907, 16 L. Ed. 2d 1016 (U.S. 1966).

Bar disciplinary proceedings. —

The disciplinary board’s departure from the hearing committee’s findings and recommendations without calling for briefs or oral argument does not deny an attorney due process, where the attorney waives appeal to the board, as well as oral argument and submission of briefs. In re Walton, 676 P.2d 1078 (Alaska 1983).

Proof by clear and convincing evidence is not required in bar disciplinary proceedings as a matter of federal or state due process. In re Walton, 676 P.2d 1078 (Alaska 1983).

Attorney’s right to procedural due process in disbarment proceedings was not violated by consolidation of grievances. Consolidation of grievances against an attorney is a routine practice in Alaska, as they are often more expeditious than separate hearings. Moesh v. Anchorage Sand & Gravel, 877 P.2d 763 (Alaska 1994).

Disciplining of attorney by supreme court. —

The exercise by the supreme court of the power to discipline an attorney does not contravene any of the provisions of either the federal or state constitution. In re Mackay, 416 P.2d 823 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S. Ct. 1907, 16 L. Ed. 2d 1016 (U.S. 1966).

Taxes generally. —

Due process requires that a tax be related to opportunities, benefits, or protection conferred or afforded by the taxing authority and such a relationship exists if the tax is fairly apportioned to the related commerce. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979).

Income tax apportionment. —

Inclusion of nonproducing oil and gas leases in income tax apportionment formula did not violate the taxpayer’s due process rights since the inclusion was not shown to produce an income attribution out of all appropriate proportions. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Collection of property taxes. —

Under a general property taxation statute, notwithstanding the lack of specific apportionment machinery, a governmental unit may collect an apportioned share of property taxes on property which would otherwise escape taxation. North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979).

Denial of right to pro-rata contribution from employer. —

Procedural due process is not offended by depriving the third-party defendant of a right to pro-rata contribution from the employer under AS 23.30.055 . State v. Wien Air Alaska, 619 P.2d 719 (Alaska 1980).

Allocation of half of punitive damages award to state. —

The statutory provision requiring that fifty percent of punitive damages award be deposited in the general fund of the state, AS 09.17.020(j) , does not violate substantive due process, nor does it result in an unconstitutional taking. Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 807 (Alaska 2005).

Imposition of punitive damages in a products liability case does not violate the state and federal constitutions. Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), modified, 615 P.2d 621 (Alaska 1980), overruled, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985).

Where, in a products liability case, the jury was instructed to consider whether the defendant knew its design was defective and had caused injuries or death; the jury was then told that if the defendant “acted with reckless indifference toward the safety of its customers, or that its acts were maliciously or wantonly done,” punitive damages could be awarded in addition to compensatory damages; and the trial judge cautioned the jury to exercise discretion and reason and not to be motivated by sympathy, bias, or prejudice with regard to the punitive damages question, these standards were sufficient to meet a void-for-vagueness challenge. Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), modified, 615 P.2d 621 (Alaska 1980), overruled, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985).

AS 46.03.760 and 46.03.790 do not violate the due process clause. Stock v. State, 526 P.2d 3 (Alaska 1974).

The penalty provisions of AS 46.03.760 and 46.03.790 do not constitute cruel and unusual punishment nor are they so completely arbitrary and shocking to the sense of justice that they must be stricken. Stock v. State, 526 P.2d 3 (Alaska 1974).

As to constitutionality of AS 46.03, see note under analysis line II D, “Vagueness,” — under catchline “Alaska Environmental Conservation Act (AS 46.03) is not void for vagueness,” etc.

The legislative statement of finality in former AS 43.26.040(e) is one which the supreme court will honor to the extent that it accords with constitutional guarantees. K & L Distribs. v. Murkowski, 486 P.2d 351 (Alaska 1971).

Construction of former AS 47.40.040 to preclude retroactive cost settling. —

Construing former AS 47.40.040 , which provides the method of determining the “full cost” of services purchased by the Department of Health and Social Services for persons for whom the state has assumed responsibility, to preclude retroactive cost settling did not deny a party providing such services due process or equal protection of the laws. Alaska Children's Servs. v. Williamson, 606 P.2d 786 (Alaska 1980).

Elimination of portion of military personnel from population base in the 1974 revised reapportionment plan did not constitute an unconstitutional employment classification violative of due process and equal protection. Groh v. Egan, 526 P.2d 863 (Alaska 1974).

Ballot access requirements. —

Where there was no evidence that the ballot access requirement in AS 15.25.160 , which was the equivalent of requiring a petition with signatures equal in number to 1 percent of votes cast in last election, caused confusion among voters or any other problem, the increase to a 3 percent minimum in order to make all ballot access requirements uniform violated the right of equal protection by effectively eliminating a new political party’s access to the ballot. Vogler v. Miller, 651 P.2d 1 (Alaska 1982).

Right to vote not denied residents of temporarily-existing borough. —

Where the Eagle River-Chugiak Borough was officially incorporated on September 12, 1974, but the act authorizing the residents of that area to vote on the question of whether or not to form a second class borough was held unconstitutional in Abrams v. State , 534 P.2d 91 (Alaska 1975) on April 15, 1975, and the Eagle River-Chugiak area was automatically reincorporated into the Greater Anchorage Area Borough, the Eagle River-Chugiak area residents were not unconstitutionally denied the right to vote in a February 11, 1975 election held in the Greater Anchorage Area Borough in which the creation of a charter commission was approved, and its members elected. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Absent any refusal of the right to vote in an election which was in fact, at the time, in a political entity separate and distinct from the Eagle River-Chugiak area, there was no denial of due process. Jordan v. Reed, 544 P.2d 75 (Alaska 1975).

Ordinance creating a service area to operate a hospital in a portion of the borough was not an arbitrary act denying substantive due process. Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447 (Alaska 1974), overruled in part, Ronne v. Ronne, 568 P.2d 1021 (Alaska 1977).

Disenrollment of natives constitutional. —

Regulations of the Secretary of the Interior prescribing the procedure for disenrollment of natives enrolled under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq., do not violate the due process clause. Sealaska Corp. v. Roberts, 428 F. Supp. 1254 (D. Alaska 1977).

Highway regulation standards adopted by reference to federal safety code. —

Agencies of the state should make highway regulation standards adopted by reference to the United States Standards Institute Safety Code available to the public at regional offices in the same manner that former AS 29.45.010 required that municipal corporations file codes adopted by reference with the office of the clerk for the inspection and use of the public. Such a practice would ensure that the individual not be deprived of his due process right to know the status of laws and regulations affecting him. Kingery v. Chapple, 504 P.2d 831 (Alaska 1972).

Civil R. 82, under which awards of attorney’s fees to defendants were made, did not violate the due process and equal protection clauses of the state and federal constitutions, insofar as it allowed attorney’s fees to be awarded against plaintiffs who litigated good-faith claims, since such argument completely ignored the financial burden that such plaintiffs imposed upon those who were forced to defend against such actions in equal good-faith. Stepanov v. Gavrilovich, 594 P.2d 30 (Alaska 1979).

Motor vehicle offenses. —

For offenses relating to motor vehicles, see notes under analysis line II F, “Criminal Matters.”

Revocation of driver’s licenses. —

The claim that under former AS 28.15.210 [see now AS 28.15.181 ], which authorized mandatory revocation of driver’s licenses, the denial to second and subsequent drunk driving offenders of the opportunity to show that they were entitled to a limited license was a violation of the due process clause was frivolous. State v. Guarderas, 589 P.2d 870 (Alaska 1979).

AS 25.27.246(i) , concerning relief from suspension of delinquent child support obligors’ driver’s licenses, cannot be applied to prevent a litigant from seeking judicial relief based on inability to pay; with that limitation, AS 25.27.246(i) passes constitutional muster against the claim that it violates due process. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

No right to demand preliminary breath test. —

District court did not err by denying defendant's motion to suppress the DataMaster results based on the police officer's decision not to administer a preliminary breath test (PBT) at the scene of his arrest as Alaska's Due Process Clause did not require the police to offer a motorist any particular test. Leydon v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. June 16, 2021) (memorandum decision).

Breath test not conclusively presumed accurate. —

Since the same procedural safeguards apply in civil driver’s license revocation proceedings for driving while intoxicated as apply in criminal prosecutions for that offense, due process requires consideration of the margin of error inherent in the breath testing procedure used pursuant to AS 28.35.031(a) , the implied consent law. Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987).

Liability standard of alcohol seller. —

Since the intoxicated consumer of alcohol can reasonably be regarded as the actor most responsible for the personal injuries caused in an automobile accident, requiring particularly egregious conduct by the liquor seller as a prerequisite to finding the seller liable is at least minimally rational. Thus, plaintiff’s due process claim fails. Gonzales v. Safeway Stores, 882 P.2d 389 (Alaska 1994).

The Employment Security Act, in giving the state a lien against property of a third person used with his permission in prosecuting the business of an employer (AS 23.20.200 ), does not deprive such third person of his property without due process of law. Territory v. Craig Enters., 355 P.2d 397 (Alaska 1960).

The exclusive liability provision of the Workmen’s Compensation Act [AS 23.30] does not violate substantive due process since it has a reasonable relationship to a legitimate governmental purpose. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

In an action by an employee who sustained on-the-job injuries to which both his employer and third-party defendants negligently contributed, the third-party defendants were not deprived of any available defenses by the refusal of the superior court to allow them to present the employer’s negligence as a partial defense to liability. Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979).

The workers’ compensation statute’s definition of “medical stability,” its burden of proof, and its presumption of medical stability are constitutional and do not violate substantive due process. Municipality of Anchorage v. Leigh, 823 P.2d 1241 (Alaska 1992).

Due process right to worker’s compensation held not infringed. —

Oil rig worker, who was employed by a contractor, brought a third-party suit against an oil company for work-related injuries; the worker’s due process rights were not infringed by the 2004 amendments to AS 23.30.045 and AS 23.30.055 because the worker still had access to the courts, and the worker still had a worker’s compensation claim. Schiel v. Union Oil Co., 219 P.3d 1025 (Alaska 2009), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

Distinctions between vocational and academic training. —

The distinctions drawn in the unemployment compensation law between vocational training and academic training are reasonable, not arbitrary, and are fairly and substantially related to their purposes. Thus, the distinctions do not violate the state’s equal protection or substantive due process guarantees. Sonneman v. Knight, 790 P.2d 702 (Alaska 1990).

Calculations of Medicaid reimbursement rate. —

Alaska Department of Health and Social Services (DHSS) violated a hospital’s due process rights under Alaska Const., art. I, § 7 when it used erroneous information to calculate a Medicaid reimbursement rate under 7 AAC 43.685 because application of the regulation was not reasonable since there was no compelling reason for using inaccurate data; however, a superior court should not have ordered DHSS to use a report to calculate the correct rate because that was not the only reasonable method of doing so. State v. Valley Hosp. Ass'n, Inc., 116 P.3d 580 (Alaska 2005).

Termination of public employees. —

Public employees who may be terminated only for just cause have a property interest in continued employment. City of North Pole v. Zabek, 934 P.2d 1292 (Alaska 1997).

The apparent absence of dispute over dispositive facts did not make a summary termination without a pre-termination hearing acceptable; a hearing was required to give the employee the opportunity to present facts which, if developed, might weigh against termination. City of North Pole v. Zabek, 934 P.2d 1292 (Alaska 1997).

Former paragraph (p)(7) of AS 23.30.041 [now AS 23.30.041 (r)(7)] does not violate the equal protection clause and due process clause of the Alaska constitution. Meek v. Unocal Corp., 914 P.2d 1276 (Alaska 1996).

No exception to filing deadline in AS 16.43.260(b) . —

Neither due process nor equal protection requires an exception to the filing deadline in AS 16.43.260(b) for applicants who can demonstrate that they failed to timely file because of insanity. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Notice to gear license holders of necessity to apply for limited entry permits was sufficient as to those who received yellow cards, were on the fisherman’s history file and received commission mailings, and where there was extensive media coverage; however, notice was constitutionally defective as violative of due process, under Isakson v. Rickey , 550 P.3d 359 (Alaska 1976), as to applicants who received the application itself, but whose names were dropped from the fisherman’s history file and did not receive subsequent commission mailings. Wickersham v. Commercial Fisheries Entry Comm'n, 680 P.2d 1135 (Alaska 1984).

The deadline requirement for permits under the Limited Entry Act did not violate the equal protection provision of the Alaska or federal constitutions. Wickersham v. Commercial Fisheries Entry Comm'n, 680 P.2d 1135 (Alaska 1984).

Requirements for entering gill net fishery. —

Setnetter who sought a limited entry permit for the southeast Alaska drift gill net fishery from the commercial fisheries entry commission had the right to have his application judged by the objective criteria of the commission’s point system, and that right implicated due process considerations under both the state and federal constitutions. Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200 (Alaska 1990).

Hearing provision in AS 16.43.260 held constitutional. —

The provisions in AS 16.43.260 of the Limited Entry Act which provide for a hearing at the classification stage for those persons who have received notice that they do not have sufficient points for the issuance of an entry permit sufficiently comports with the requirements of due process. Noden v. Commercial Fisheries Entry Comm'n, 680 P.2d 493 (Alaska 1984).

Perpetrators of crimes barred from recovering damages. —

Former AS 09.17.030 [now AS 09.65.210 ], which bars recovery of damages by persons injured while committing a crime, did not deprive an arrestee of due process, where he filed a personal injury action against state troopers for allegedly using excessive force in apprehending him. Sun v. State, 830 P.2d 772 (Alaska 1992).

Restrictions on nonresident fishermen. —

Chapter 62, SLA 1961, placing certain restrictions on nonresident fishermen, violated the provisions of this section. Brown v. Anderson, 202 F. Supp. 96 (D. Alaska 1962).

Failure to preserve evidence. —

In action against skippers of crab vessels for taking undersized crab, since the skippers had a reasonable opportunity to preserve the evidence, the state’s inability to produce the crab later did not violate the skippers’ discovery rights or their right to due process. Gudjonnson v. State, 667 P.2d 1254 (Alaska Ct. App. 1983).

For failure to preserve evidence in criminal proceedings, see same catchline under analysis line II F, “Criminal Matters.”

Proving civil negligence. —

Outside of strict liability exceptions, a separate showing of simple civil negligence is both necessary and sufficient under Alaska’s Constitution. The negligence standard is constitutionally permissible because it approximates what the due process guarantee aims at: an assurance that criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter. State v. Hazelwood, 946 P.2d 875 (Alaska 1997).

A simple or ordinary civil negligence standard is adequate to protect a criminal defendant’s interest. Thus, the court’s adoption of an ordinary civil negligence mens rea standard in its instructions to the jury did not constitute a denial of due process. State v. Hazelwood, 946 P.2d 875 (Alaska 1997).

Zoning ordinance which excluded all nonpublic schools from a residential area was constitutionally permissible, and city was not compelled to allow plaintiff to operate a parochial school in its church building located in the area. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982).

Spot zoning. —

Where the plaintiff’s brief did not allege facts that amounted to a prima facie case of spot zoning, but made only conclusory statements regarding the decision to rezone the area in which her junkyard was located, there was nothing to support her claim that the action was carried out in an unconstitutionally arbitrary way, and plaintiff failed to meet her heavy burden of proving that the refusal to exempt her property had no reasonable relationship to a legitimate governmental purpose. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Ordinance regulating massage parlors. —

The requirement in an ordinance that an applicant for a masseur/masseuse license or license to operate a physical culture studio or massage parlor have a record, for two years prior to the date “of employment,” free of the sexually related criminal convictions listed in the ordinance, was invalid as an unconstitutional deprivation of the due process rights of an applicant so situated. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

An ordinance which automatically disqualified those convicted of a prostitution-related offense within two years prior to the date of “application” for a masseur/masseuse license or license to operate a physical culture studio or massage parlor did not violate such applicants’ right to due process protection. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Recalculation of child support. —

Child Support Enforcement Division (now the Child Support Services Agency) failed to provide the constitutional safeguards required under this section in recalculation of child support obligation where it failed to provide obligor father adequate notice of proceedings and did not allow him to meaningfully participate in either informal conference or formal appeal. Bostic v. State, Dep't of Revenue, 968 P.2d 564 (Alaska 1998).

Termination of parental rights. —

Due process does not in all cases require the transport of an incarcerated parent to a trial to decide the termination of parental rights. The trial court must consider all relevant factors, including the disputed issues, whether a parent plans to testify, the relevance of a parent’s testimony to the disputed issues, the costs to the state — financial, administrative, and legal — and any threat to public safety, in deciding whether to grant a motion by a parent to be transported to a termination hearing. Richard B. v. State, 71 P.3d 811 (Alaska 2003).

Child custody proceeding. —

Mother’s due process rights were violated when the court indicated that interim custody issues would be decided at next hearing but then concluded that hearing with findings to support a final custody and visitation order; the court did not clarify that it was prepared to enter a final ruling until after the parties made their final arguments. Debra P. v. Laurence S., 309 P.3d 1258 (Alaska 2013).

B.Property Rights

Appeal from land use decision. —

Definition of an aggrieved person in Homer, Alaska, City Code §§ 21.68.020(c), 21.68.040(b) as one who is adversely affected by a land-use decision does not conflict with AS 29.40.050 , 29.40.060 . Moreover, the city clerk’s rejection, pursuant to these ordinances, of a notice of appeal submitted by an objector who did not meet the definition of an aggrieved person did not violate the objector’s due process and equal protection rights under Alaska Const. art. I, §§ 1, 7, and U.S. Const. amend. XIV, § 1, nor did the city clerk act arbitrarily in so doing. Griswold v. City of Homer, 252 P.3d 1020 (Alaska 2011).

Vested property rights are protected against state action by the provision of the 14th amendment of the federal constitution and by this section. Bidwell v. Scheele, 355 P.2d 584 (Alaska 1960); Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, 580 P.2d 687 (Alaska 1978), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Because the plaintiff had a vested property right in her junkyard in that it was a lawful use within the original zoning district, and it only became a nonconforming use when the district was rezoned rural residential, her right in operating her junkyard could not be denied her without due process of law. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Due process denied where no opportunity was afforded for compliance. —

The plaintiff did not receive all the process to which she was entitled where she was given no opportunity to proceed with her attempted compliance after rezoning and where no evidence was offered that she would not or could not comply with the relevant ordinance. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Decisions broadly interpreting “property” protected by due process. —

See Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Foreclosure notice. —

City’s failure to provide written foreclosure notice did not violate a property owner’s right to due process because the owner, as a lienholder and not a property owner, was not due foreclosure notice. Tagaban v. City of Pelican, 358 P.3d 571 (Alaska 2015).

An interest in a lawful business is a species of property entitled to the protection of due process. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Bidders on governmental contracts. —

Plaintiff transportation company’s due process rights were not violated in its action to void a contract awarded to another transportation company by a school district because its status as a disappointed bidder did not entitle it to the entire panoply of formal procedural safeguards that attached when a proceeding concerned a vested property interest, in that the applicable administrative code in effect at the time granted comprehensive discretion not to award the contract to any bidder and thus could not properly be read as having created a property interest. Further, the record as a whole supported an inference that the district did not intentionally delay release of its bid recommendation to plaintiff. Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d 1018 (Alaska 2005).

Driver’s license suspension. —

Motorcyclist was not entitled to criminal due process for suspension of his driver’s license for failure to carry insurance. While the license is a property interest, the failure to carry the required insurance is directly related to unfitness to drive, and suspension is a remedial action. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Due process properly followed in municipal tour operator’s license denial. —

Actions of borough in denying renewal of tour operator’s license due to multiple complaints regarding his actions and behavior as a tour operator was properly handled, and the tour operator was given sufficient opportunity to answer the findings which were the basis for the denial. Button v. Haines Borough, 208 P.3d 194 (Alaska 2009).

Liquor licensees entitled to notice before licenses suspended. —

Absent an emergency situation in which the public health, safety or welfare require summary action, the due process clause of the United States Constitution and this section require that adequate notice and a meaningful opportunity to be heard must be afforded to liquor licensees before their licenses can be suspended. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Because the Alcoholic Beverage Control Board employs discretion, the only way in which appellant can seek to invoke the discretion in its favor is through a hearing. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Masseur license. —

Due process protection may be invoked as to the issuance of masseur/masseuse license or operator license for a massage parlor. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

A hunting guide license is a sufficient property interest to qualify for the protection of due process. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

In the suspension of a hunting guide license the requirements of adequate notice and opportunity for a hearing are required. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

The state’s power over natural resources is such that it could entirely eliminate the role of hunting guides, and no problem of due process would arise. However, when the state decides to permit the harvesting of its fish and game, and in doing so permits the issuance of hunting guide licenses, then problems of due process do arise when the individual, rather than the group as a whole, is affected. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

An applicant for a limited fishery entry permit has a property interest, under AS 16.43.260 and the regulatory scheme implementing it, and is entitled to due process protection. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

“Taking” of attorney’s personal services impermissible. —

Imposing upon the attorney as a condition to practice a requirement which would demand the rendering of personal services without just compensation would in itself be an impermissible infringement of Alaska’s due process clause and, thus, may not serve as the basis for avoiding the provisions of the taking clause. De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Employee’s property interest in job. —

The protections of due process apply only when an individual has a life, liberty, or property interest to protect, and an employee has a property interest in his or her job only when he or she has a legitimate expectation of continued employment; employees who have tenure or who can be fired only for cause have property interests in their jobs. Chijide v. Maniilaq Ass'n, 972 P.2d 167 (Alaska 1999).

A person who is employed “at the pleasure” of his employer has no property interest in continued employment that is protected by due process. Breeden v. City of Nome, 628 P.2d 924 (Alaska 1981).

Persons who are employed other than “at will” have a sufficient property interest in continuing their employment, absent just cause for their removal, to require that they be given notice and an opportunity to be heard under the due process clause of the Alaska Constitution before their employment is terminated. Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983).

Employment contract. —

City manager’s contract with a city providing for 30 days’ notice of termination from either party created a “property” interest that was a legitimate expectation of continued employment protectible under the due process clauses of both the federal and Alaska constitutions. Breeden v. City of Nome, 628 P.2d 924 (Alaska 1981).

Police chief’s contract with city providing that he could be discharged without cause upon 30 days’ notice gave him a property interest only in the notice period, and, even though he was deprived of this property interest when he was terminated without notice, prejudice caused thereby was removed by the payment of compensation for the 30-day period. Ramsey v. City of Sand Point, 936 P.2d 126 (Alaska 1997).

Employee had a property interest in continued employment for the 60 and 90 days’ notice periods incorporated into her contract, and employer who complied with the notice requirements did not violate employee’s rights by ending her employment. Chijide v. Maniilaq Ass'n, 972 P.2d 167 (Alaska 1999).

Dismissal of nontenured teachers. —

Where a mid-year dismissal of nontenured teachers is at issue, clearly the teachers have been deprived of an interest in property, namely, their present teaching post. This is an interest protected by the 14th amendment to the United States Constitution and by the first article of the Alaska Constitution, and thus they are entitled to a hearing. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

The interest of nontenured teachers in not being dismissed without a hearing is manifest. Without an opportunity to be heard and to present their cases, they could be dismissed without good cause and with a serious charge of incompetency levied against them, a charge which is permanently on their records and a hindrance to reemployment. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

See note under catchline “Dismissal of nontenured teachers,” analysis line II C “Notice and Hearing,” Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Property distribution in divorce not violative of due process. —

Property distribution order was not void under Alaska R. Civ. P. 60(b) and did not violate the husband’s due process rights where the language in the prayer for relief was sufficient to put the husband on notice that the trial court would divide the marital estate; because the husband elected to default in the face of that notice, the trial court could properly exercise its jurisdiction and adjudicate the property rights of the parties, and the property division order was consistent with Alaska R. Civ. P. 54; further, Alaska R. Civ. P. 90.1 allowed parties to a divorce proceeding to file a list of disputed items five days before trial. Hicks v. Pleasants, 158 P.3d 817 (Alaska 2007).

Corporation applying for a mining lease has no property right of which it is deprived by the director of land’s denial of the application. State, Dep't of Nat. Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806 (Alaska 1978).

Failure to effectively dispute action of state. —

Alaska Department of Natural Resources (DNR) Commissioner did not violate the interest holders’ right to due process where the interest holders did not object to the Commissioner’s response or give notice of specific disputed material facts that warranted a hearing, nor did they seek to submit additional material to support their cursory appeals; they failed to submit additional information with a request for reconsideration. Law Offices of James B. Gottstein v. State, 223 P.3d 609 (Alaska 2010).

Seizure of vessel for suspected use in illegal activity. —

Due process does not require that any owner of a vessel seized by the state for suspected use in illegal activity has an absolute right to obtain release of the property upon the posting of an adequate bond. To permit this would frustrate one purpose of forfeitures, which is to prevent possible use of the property in further illicit acts. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

When the seized property is used by its owner in earning a livelihood, notice and an unconditioned opportunity to contest the state’s reasons for seizing the property must follow the seizure within days, if not hours, to satisfy due process guarantees even where the government interest in the seizure is urgent. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

When three owners of a fishing vessel were active partners in the enterprise of operating the vessel, it was not unduly oppressive to charge two of the owners with knowledge and control of that vessel’s illegal activity even though they were not on board with the third owner at the time of the alleged infractions. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

Remission of forfeited items to innocent third parties. —

Where property is forfeited under AS 16.05.195 , if an innocent nonnegligent third party can show the manner in which the property came into possession of the violator and that prior to parting with the property he did not know, nor have reasonable cause to believe, either that the property would be used to violate the law, or that the violator had a criminal record or a reputation for commercial crime, substantive due process under the Alaska Constitution requires that a procedure be available for remission of the forfeited item. State v. Rice, 626 P.2d 104 (Alaska 1981).

An innocent holder of an interest in a seized airplane who did all he could reasonably be expected to do was deprived of his constitutional rights to substantive due process through the failure of the statutory scheme relating to forfeitures to provide for remission of the interests of innocent nonnegligent third parties in the forfeited item. State v. Rice, 626 P.2d 104 (Alaska 1981).

Application of slayer statute did not violate due process. —

Application of the slayer statute, AS 13.12.803(k) , to a son convicted of negligent homicide of father did not violate son’s due process rights regarding alleged loss of partnership interest with father, where son had had a hearing in superior court and failed to present any evidence regarding the alleged partnership or joint venture interests he had with his father, evidence suggested he did not have any partnership interest in the father’s business, and, even if he had had a partnership interest, it was not clear that the slayer statute would cause him to forfeit his own share of the partnership. Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Damage to district court judge’s reputation as a result of the operation of the peremptory challenge statute was not deprivation of a sufficient property interest to afford due process protection. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Parolee denied access to judicial process. —

See note under catchline “AS 33.15.190 violates section,” analysis line II F “Criminal Matters,” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

A deprivation is not necessarily “de minimus” merely because the defendant’s loss can be measured in monetary terms and “remedied” by damages for wrongful attachment. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

See notes under analysis line II C, “Notice and Hearing,” Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Meaning of “de minimus”. —

“De minimus” might refer to attachment of real property already heavily encumbered, therefore not significantly diminishing the debtor’s use of that property pending litigation. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Prescriptive easements. —

Landowner’s due process rights were violated where landowner did not have notice that a right-of-way, pursuant to former 43 U.S.C.S. § 932, was at issue; however, the trial court properly found that a prescriptive easement existed over the landowner’s land, as even though the landowner only owned the agricultural interest in the land, the landowner could grant an easement, or alternatively could have a prescriptive easement granted against the landowner, that did not interfere with the landowner’s mandate to use the land for agricultural purposes, and the prescriptive easement did not violate AS 38.95.010 . Price v. Eastham, 75 P.3d 1051 (Alaska 2003).

Absolute requirement of filing fee violated due process. —

Where a property owner challenged a borough’s land-use ordinance, because the property owner’s access to the legal system was contingent on payment of the borough’s mandatory administrative filing fees, the borough’s absolute requirement for payment of such fees, without a process for waiver upon a showing of indigency, would have violated the property owner’s right to procedural due process if the property owner was in fact indigent. Varilek v. City of Houston, 104 P.3d 849 (Alaska 2004).

Agency records. —

Residents challenged plans of the Alaska Department of Environmental Conservation (DEC) for various shipping entities with respect to oil discharge. DEC violated the residents’ due process rights by dismissing the residents for failure to pay preparation costs for the agency’s record and for denying access to the record pending “completion”. Copeland v. Ballard, 210 P.3d 1197 (Alaska 2009).

C.Notice and Hearing

Deprivation of life, liberty or property by adjudication must be preceded by notice and opportunity for hearing appropriate to the nature of the case. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974); Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Due process of law requires that before valuable property rights can be taken directly or infringed upon by governmental action, there must be notice and an opportunity to be heard. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974); Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

The supreme court has emphasized the fact that providing a party notice and an opportunity for a hearing is constitutionally required before that party may be permanently deprived of valuable property rights. Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

The standards of due process under the Alaska and federal constitutions require that a deprivation of property be accompanied by notice and opportunity for hearing at a meaningful time to minimize possible injury. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

The core content of procedural due process places upon government the duty to give notice to individuals whose interests in life, liberty or property are adversely affected by government action. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

The crux of due process is opportunity to be heard and the right to adequately represent one’s interests. Adequate notice is the common vehicle by which these rights are guaranteed. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

The notice must be of such nature as reasonable to convey the required information. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Due process required that a class of recipients of services under a personal care attendant program under Medicaid be provided a meaningful opportunity to understand, review, and challenge reduction of services imposed by the department of health and human services; notices sent by the department violated due process in failing to provide the assessment data of each recipient’s social, medical, and nursing needs, as necessary for each recipient to perfect an administrative appeal. Baker v. State, 191 P.3d 1005 (Alaska 2008).

Notice given. —

Alaska Department of Natural Resources (DNR) did provide the gas producer with notice of its decision on the producer’s request, and the producer had the opportunity to present its arguments to DNR, and after the producer submitted its request, DNR rejected the request because it was retroactive; because the producer had both adequate notice and a fair opportunity to present its claims, its due process rights were not violated. Potter v. Potter, 55 P.3d 726 (Alaska 2002).

Subject matter of proceedings. —

Due process under the Alaska Constitution requires, at a minimum, that parties be notified of the subject of proceedings concerning them so that they will have a reasonable opportunity to be heard. Here this requirement was not met, so appellant’s due process rights were violated. Appellant had been given no notice that modification of decreed visitation was at issue — indeed, based on the court’s rulings, both parties reasonably expected that decreed visitation would not be at issue. Potter v. Potter, 55 P.3d 726 (Alaska 2002).

Notice must be given sufficiently in advance. —

Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity. RLR v. State, 487 P.2d 27 (Alaska 1971); Doe v. State, 487 P.2d 47 (Alaska 1971).

If the right to notice and hearing is to serve its full purpose, then it is clear that it must be granted at a time when the deprivation can still be prevented. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Cure for lack of proper advance notice. —

Even though the Alaska Department of Natural Resources violated an environmental group’s right to due process by hearing and granting an oil company’s motion to lift the automatic stay provided by 11 AAC 02.060 with only one day’s notice, the department later cured that violation by permitting the group to move for reconsideration and by granting the group time to review the administrative record. State v. Greenpeace, Inc., 96 P.3d 1056 (Alaska 2004).

Weight of property interests relevant to notice and hearing. —

The relative weight of property interests interfered with by prejudgment remedies is relevant to the form of notice and hearing. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Usually due process requires some form of notice and hearing. —

But except in the “extraordinary situations,” due process requires some form of notice and hearing to establish the probable validity of a creditor’s underlying claim before the debtor can be temporarily deprived of a property interest that “cannot be characterized as de minimus.” Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Requisite elements for “extraordinary circumstances”. —

As to extraordinary circumstances justifying a prehearing seizure, the requisite elements are: (1) The seizure must be directly necessary to secure an important governmental or general public interest; (2) There must be a special need for very prompt action; (3) The state must maintain strict control over such summary prehearing seizures by permitting only those governmental officials who are responsible for determining the necessity and justification for summary seizure to do so under narrowly drawn standards. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Notice defective where recipient was unprotected incompetent. —

Notice effected in a valid, statutorily authorized manner was constitutionally defective where the recipient was known to be an unprotected incompetent. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

The summons served upon indigent bush defendants in a small claims action was constitutionally defective because it did not adequately convey the information necessary to their defense against a creditor’s claim. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

A notice that failed to inform indigent bush defendant of the right to file a written pleading was not reasonably calculated to afford him an opportunity to be heard at a meaningful time and in a meaningful manner. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Defendant could not complain of lack of adequate notice. —

A defendant charged with having polluted the waters of the state by contaminating a creek with improperly treated sewage from a trailer court in a manner which made the creek a potential health and safety hazard in violation of AS 46.03.710 may not complain of lack of adequate notice as to what acts are prohibited. Stock v. State, 526 P.2d 3 (Alaska 1974).

Defendant could not complain of lack of adequate notice. —

Licensee’s due process rights were not violated due to the revocation of a chauffeur’s license after the receipt of a final citation because the licensee received notice prior to the revocation, the informal procedures in place provided adequate review, and receipt of the ruling 7 months after revocation was not an unduly long time. The availability of a post-deprivation hearing further supported the conclusion that there was no due process violation. Patrick v. Municipality of Anchorage, 305 P.3d 292 (Alaska 2013).

Delay attributable to defendant. —

Parolee who fought extradition from Tennessee to Alaska could not assert a violation of the 120-day period provided for in AS 33.16.220(f) ; the delay in the hearing was caused by the defendant’s efforts to block extradition and therefore the delay was attributable to him. Covington v. State, 938 P.2d 1085 (Alaska Ct. App. 1997).

Defendant was denied due process of law where inadequate notice was given of the boundaries of the park in which discharging of a firearm was prohibited. Wacek v. State, 530 P.2d 751 (Alaska 1975).

The burden placed upon the defendant to locate the boundaries of a park which has no signs marking its boundaries, which was shown on no published map, and the existence of which was mentioned in no fish and game regulation issued to hunters, was unreasonable, given the relative ease with which some corrective measure might be taken. Wacek v. State, 530 P.2d 751 (Alaska 1975).

Notice required prior to being held in contempt. —

Continental Ins. Cos. v. Bayless & Roberts, 548 P.2d 398 (Alaska 1976).

When inadequate statute sustained. —

A statute which fails to give adequate notice of every type of conduct which is prohibited may still be sustained (1) if the offense charged falls squarely within its prohibitions and (2) if a construction may be placed upon the statute so that its reach may be reasonably understood in the future. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

Due process does not require a full-scale hearing in every situation to which due process applies. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

There is no due process requirement that there be a hearing in the absence of substantial and material issues crucial to the determination of the right involved. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Because the determination to be made in suspending a license is simply whether to impose a temporary sanction and, if imposed, its extent rather than an adjudication of guilt or innocence, it is not necessary for the Alcoholic Beverage Control Board to make written findings or to file a written opinion explaining its action, so long as it reaches a decision after hearing the licensee’s presentation. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

Where it was the failure to operate the licensed premises for at least 30 8-hours days during each of the two preceding years, rather than criminality, which was the basis for the denial of a license renewal, the licensee was not entitled to a judicial proceeding with a jury trial prior to the denial of the renewal, and thus adequate notice and an opportunity to be heard in a meaningful, impartial administrative hearing was sufficient to satisfy due process requirements. Rollins v. Department of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202 (Alaska 1999).

Workers’ compensation proceedings. —

Where an employee received advice from a hearing officer which adequately informed him of his obligation to request a hearing on his workers’ compensation claims within two years, employee’s procedural due process rights were not violated under AS 23.30.110(c) . Since claimant filed his request for a hearing more than two years after receiving that advice, any deficiencies in previous written notices had no effect on his claims. Bailey v. Texas Instruments, Inc., 111 P.3d 321 (Alaska 2005).

Because physician had an independent right to file a claim and employee could not adequately represent his interest, he had a cognizable property interest in filing an independent claim and his interest was entitled to due process protection; because AS 23.30.097(f) could foreclose the physician’s ability to sue employee for payment of unpaid medical bills, or at least make collection problematic even without the complication of the employee’s bankruptcy, due process required his joinder. Barrington v. Alaska Communs. Sys. Group, Inc., 198 P.3d 1122 (Alaska 2008), modified, — P.3d — (Alaska 2009).

Proceeding not to result in subsequent deprivation of rights. —

The outcome in one proceeding may not result in the subsequent deprivation of rights that were not litigated or subject to deprivation in the prior proceeding. Frontier Saloon v. Alcoholic Beverage Control Bd., 524 P.2d 657 (Alaska 1974).

For a hearing to meet the standard for due process it must have been fair, appropriate and adequate, and the participants must have had an opportunity to protect their rights and make a showing by evidence. Fenner v. Bassett, 412 P.2d 318 (Alaska 1966).

Failure to object waives right to notice. —

A master’s decision to determine the paternity of a child at a hearing to modify child support did not violate due process, where the alleged father did not object when the master announced at the beginning of the hearing that he would resolve the paternity issue, when he asked if anyone had a problem with his taking testimony on both issues, or when he directed his questions to the paternity issue. Also, the father’s failure to object timely at the hearing was not excused because he was not represented by counsel, as even a pro se litigant must make some attempt to assert his or her rights. Wright v. Black, 856 P.2d 477 (Alaska 1993), overruled, B.E.B. v. R.L.B., 979 P.2d 514 (Alaska 1999).

Academic dismissal. —

To satisfy the guarantee of procedural due process, notice of dissatisfaction and possible dismissal must precede an academic dismissal by a reasonable time so that a student has a reasonable opportunity to cure his or her deficient performance. Nickerson v. University of Alaska Anchorage, 975 P.2d 46 (Alaska 1999).

High school ROTC instructor’s unpaid suspension violated due process. The school board was obligated, though, to pay his salary only until he could have reasonably received a hearing had he not consented to a delay. Romulus v. Anchorage Sch. Dist., 910 P.2d 610 (Alaska 1996).

Chauffeur’s license revocation. —

Licensee’s due process rights were not violated when a hearing officer submitted a report relating to the revocation of a chauffeur’s license and it was accepted by a commission because there was no reason why the licensee should have had an additional opportunity to reargue the evidence presented at an administrative hearing in front of the commission; an issue relating to a lack of notice of the proposed decision was not addressed because the licensee failed to show prejudice. Patrick v. Municipality of Anchorage, 305 P.3d 292 (Alaska 2013).

Dismissal of nontenured teachers. —

AS 14.20.180 , providing procedure and hearing upon notice of dismissal or nonretention of a teacher, does not mention any procedure to ensure fairness in the dismissal of a nontenured teacher, other than notification of the cause for dismissal. However, a hearing is the procedure most likely to lead to a fair determination. The stigma which attaches to a discharge for incompetence is sufficiently injurious to call for this type of safeguard. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Even though a hearing is not accorded to nontenured teachers by statute, the constitutional requirements of due process overcome any statutory rule. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

A full judicial hearing is not necessary, but a hearing that allows the administrative authority to examine both sides of the controversy will protect the interests and rights of all who are involved. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

The supreme court realizes that a full judicial hearing could be time consuming and, therefore, possibly detrimental to the interests of a school district, which might be required to delay the dismissal of a perhaps unsuitable or incompetent teacher. But the rudiments of an adversary hearing can be preserved without casting an undue burden on the school district. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

In a hearing prior to dismissal for cause of nontenured teachers, the teachers must be given the opportunity to present their own defense by testimony and other evidence. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Where the nature and consequences of the charge are serious, as the charge of incompetency against a teacher, the right to present witnesses on one’s behalf is manifest: A hearing in which only one side presents evidence is inherently unfair. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Courts more inclined to consider causes of discharge. —

Although courts in the past have frequently held that public employees have no absolute right to a hearing on discharge, because government employment is a privilege and not a property right, courts recently have become more inclined to consider the causes of discharge and the methods and procedures by which it is effected, especially where the discharge affects reputation and the opportunity for employment thereafter. Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973).

Evidentiary standard for workplace harassment termination. —

City board properly applied the preponderance of the evidence standard when it determined that the police officer had engaged in conduct amounting to hostile work environment sexual harassment while employed by the city and that termination was appropriate because that standard satisfied due process. Jurgens v. City of N. Pole, 153 P.3d 321 (Alaska 2007).

“For cause” dismissal of state employee. —

University of Alaska violated a “for cause” employee’s due process rights under the U.S. Constitution and the Alaska Constitution when it terminated her employment before the date her contract expired, without offering her notice and an opportunity to contest the decision. Although the University had a nonretention policy, it was not allowed to use that policy to achieve a performance-based dismissal of someone who was a “for cause” employee. Grimmett v. Univ. of Alaska, 303 P.3d 482 (Alaska 2013).

A regulation providing for criminal sanctions on the use of unlisted drugs based upon their similarity of composition to listed drugs failed to provide notice of the conduct prohibited and violated a defendant’s constitutional right to due process upon his conviction for use of the unlisted drug. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

Inadequate notice of right to challenge investigative demand. —

An investigative demand issued to appellants failed to adequately apprise them of their right to challenge the demand or to inform them of a procedure for effecting such a challenge when the only notice of such rights contained in the demand was an excerpt from AS 45.50.592(g) . Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

There was no denial of due process, despite inadequacy of notice in an investigative demand of rights to challenge the demand, when appellants actually availed themselves of their rights to challenge and there was no prejudice to them. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Since, as the state supreme court has interpreted the Restraint of Trade Act, a petition to modify or set aside the investigative demand automatically tolls the penalty provisions of AS 45.50.592(g) , appellants who filed that petition did not exercise the right of judicial review only at the risk of incurring severe penalties. Appellants were accorded a statutory right to challenge the validity of the state’s investigative demand and this is all that due process requires. That appellants must initiate such proceedings does not dictate otherwise. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Subject-matter of meeting of legislature. —

House speaker was not entitled to advance subject-matter notice that a vote to replace him would occur at a meeting; the only process due under the constitution is that the meeting be legal in the constitutional sense and that a majority of the membership concur in action taken. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Child custody hearings. —

A father’s right to a hearing on child custody was not satisfied by a hearing in a domestic violence proceeding at which an award of temporary custody was made, since the hearing was held without notice that permanent custody was at issue and it did not satisfy the hearing requirements for permanent custody modification. Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998).

Scheduling of a custody hearing with eight days’ notice did not violate due process because the parties had been negotiating custody modification for over a year by the time of the hearing; the mother was able to present sufficient evidence allowing the trial court to make a determination and the record did not reflect minimal preparation. Rebecca L. v. Martin C., — P.3d — (Alaska Mar. 13, 2013) (memorandum decision).

Because the father's requested modification, seeking full legal and physical custody, and the trial court's order, giving the father primary custody, were both material and substantial alternations to the existing custody arrangements, due process required the trial court to hold a hearing before entering the custody modification so that the mother could have offered witnesses and other evidence and challenged the custody investigator's findings. Laura B. v. Wade B., 424 P.3d 315 (Alaska 2018).

In this custody modification case, the mother was not denied due process, as case law put her on notice that extended family could play a role in the best interests analysis, she had adequate notice that grandparent involvement could be considered, and she was given the opportunity to respond. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Failure to consider father’s response cured. —

Even if a father met the applicable deadline under Alaska R. Civ. P. 6(c) for filing a response to temporary custody and child support orders drafted by the mother’s attorney, the father’s due process rights were not violated when the trial court failed to consider his response; the trial court cured any error that resulted from signing the temporary orders before considering the father’s arguments. Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Notice to husband of divorce modification hearing. —

Given a superior court’s awareness of a husband’s frustrated attempt to attend a hearing on modification of divorce decree, the relative ease with which the husband’s presence could have been secured, and the importance of the questions at issue in the modification hearing, proceeding with the hearing in the husband’s absence was a violation of his right to due process under the Alaska Constitution, even though his attorney was there to represent him. Ryfeul v. Ryfeul, 650 P.2d 369 (Alaska 1982).

Modification of custody. —

A custodial parent had sufficient notice that a hearing would involve modification of custody, not simply the establishment of a visitation schedule, where it was shown that he was aware of his former wife’s intention to seek equal time with the children. Siekawitch v. Siekawitch, 956 P.2d 447 (Alaska 1998).

Superior court’s failure to hold an evidentiary hearing on the best interests of the children and an appropriate visitation schedule before ruling on an opposed motion to modify custody constitutes reversible error. Naquin v. Naquin, 974 P.2d 383 (Alaska 1999).

Father’s due process rights were violated by lack of notice that his custody rights were at issue at show-cause hearing which preceded entry of modification order; it was error to modify custody permanently on the basis of a show-cause hearing initiated to address one parent’s alleged attempt to frustrate the other parent’s visitation rights. Vinzant v. Elam, 977 P.2d 84 (Alaska 1999).

Shared custody award not volative of due process. —

In a dissolution of marriage proceeding, because a mother had notice of the proposed custody arrangement and because she had an opportunity to be heard on the matter, the superior court’s order awarding shared custody of her child to the father when the child reached his fifth birthday did not violate the mother’s due process rights. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Modification of child support. —

Trial court did not violate the father’s procedural due process rights by retroactively modifying his child support obligation to the date he was served with notice of the Child Support Enforcement Division’s (CSED) petition for modification as provided in Alaska R. Civ. P. 90.3(h)(2) because there was adequate evidence that the father actually received the CSED’s notice, where the record showed, among other things, that the CSED mailed the notice to the father’s last known address, in compliance with Alaska R. Civ. P. 5. Crumpler v. State ex rel. Armstrong, 117 P.3d 730 (Alaska 2005).

Premarital child support arrearage. —

Where husband lacked notice and an opportunity to be heard on the issue of premarital child support arrearage when the wife first raised the issue during final argument, the superior court’s order for premarital child support had to be remanded because it violated the husband’s due process rights. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

Trial court sua sponte adopting new theory of case. —

Defendant’s right to a fair trial was jeopardized where the trial court sua sponte adopted a new theory of the case since the trial court had failed to give the parties notice that it would invoke the new theory along with an opportunity to adjust their cases accordingly. State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

Where organization sued its former finance officer, alleging that he had misappropriated funds by writing unauthorized checks to himself, and finance officer failed to appear for trial, the trial court did not err in holding an ex parte hearing on damages because it properly assumed the finance officer had forfeited the right to defend himself when he failed to appear for trial. Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996 (Alaska 2005).

Trial court considering new matters after remand. —

Where a case was remanded to determine whether children should be adjudicated children in need of aid (CINA) due to the father’s inability to provide for them, once it complied with that direction, the trial court did not violate the father’s due process rights by its additional consideration of other grounds for CINA status; the father had adequate notice since the alternative grounds had been alleged in the original termination petition and he had an opportunity to present evidence at the original trial. A.M. v. State, 945 P.2d 296 (Alaska 1997).

Notice of possibility of conviction for similar offense. —

Where defendant was charged with attempted sexual assault in the first degree, he was thereby assumed to have notice that he might be convicted of second-degree sexual assault because of the similarities in the elements of the two offenses, and his conviction for the latter offense did not violate due process. Nicholson v. State, 656 P.2d 1209 (Alaska Ct. App. 1982).

Failure to allow a preliminary hearing does not violate a defendant’s rights to due process and equal protection. Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982).

In employment discrimination actions before Alaska State Commisson for Human Rights, complainant is entitled to the investigative record, but not to more detailed findings, prior to internal review on application for reconsideration after dismissal of the complaint. Borkowski v. Snowden, 665 P.2d 22 (Alaska 1983).

Prerequisites for suit against employer. —

An employee need not show that his union breached its duty to represent him fairly in the grievance procedures provided under a collective bargaining agreement before the employee may directly sue his employer in court for wrongful discharge. Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983).

Right to counsel in proceedings to terminate parental rights. —

The due process clause of the Alaska Constitution guarantees indigent parents a right to the effective assistance of counsel in proceedings brought to terminate their parental rights. V.F. v. State, 666 P.2d 42 (Alaska 1983).

Right to conflict-free counsel. —

Defense counsel's alleged conflict of interest did not entitle defendant to reversal because (1) defendant's bar complaint did not constitute a conflict of interest, (2) counsel believed counsel could represent defendant despite counsel's prior concerns about this ability due to the complaint, and (3) defendant wanted counsel's representation. Henry v. State, — P.3d — (Alaska Ct. App. June 3, 2020).

Transformation of child custody proceeding. —

Where superior court transformed proceeding which initially was contemplated to be one that would determine the question of child’s interim custody for the impending school year into one that decided the question of permanent custody, proceeding did not afford basic fairness to parent of child. Cushing v. Painter, 666 P.2d 1044 (Alaska 1983).

Notice of schools subject to closure. —

A five-day notice of which schools in a school district were subject to closure militated against appropriate preparation and posed serious obstacles to the presentation of persuasive, properly researched, and supported opposition to any closure plan. It also lessened the likelihood of a fair hearing before the school board and of the school board reaching a reasoned administrative decision. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

The importance of the educational and property interests involved in the closure of neighborhood schools in a school district required adequate notice of the school board meeting at which the decision was made to close a specific school and five-day notice of the meeting was insufficient. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Judicial foreclosure action. —

The trial court did not deprive defendant of his due process rights by not holding an evidentiary hearing on the establishment of an upset price in a judicial foreclosure action. Hayes v. Alaska USA Fed. Credit Union, 767 P.2d 1158 (Alaska 1989).

Closing of insolvent estate. —

The notice of a hearing of the closing of an insolvent estate which only called for objections to the final accounting or to the closing of the estate did not give creditor adequate notice that a trial of his fraudulent conveyance claim was contemplated. Zok v. Estate of Collins, 84 P.3d 1005 (Alaska 2004).

Environmental “permit administration fees.” —

Trial court properly upheld the denial of a company’s appeal of “permit administration fees” issued by the Alaska Department of Environmental Conservation in connection with the company’s administrative appeals of air quality control permits where the Department’s interpretation of AS 46.14.240(c) did not violate the company’s due process rights to notice and a hearing. Alyeska Pipeline Serv. Co. v. Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006).

“Yellow card” used by the Commercial Fisheries Entry Commission (CFEC) to notify gear license holders of necessity of applying for limited entry permits under AS 16.43.260 when considered in conjunction with the other methods used by the CFEC and with the widespread coverage which the limited entry program got from the news media was sufficient to satisfy due process notice requirements. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827 (Alaska 1981), limited, Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19 (Alaska 2020).

Seizure of vessel for suspected use in illegal activity. —

See notes under same catchline under analysis line II B.

Rescission of contract zoning. —

City violated appellees’ right to due process of law when it met and rescinded appellees’ contract zoning without providing them notice of the meetings and actions proposed to be taken, even though appellees received a notice of default on the contract and appellees were afforded a subsequent reconsideration hearing before the city council. City of Homer v. Campbell, 719 P.2d 683 (Alaska 1986).

Denial of surgical privileges by hospital. —

Basic principles of due process of law require that when a hospital denies a doctor an application for surgical privileges, it notifies the applicant of the specific criteria which were determinative in the denial and how the applicant failed to meet the hospital’s expectations with regard to the criteria. Kiester v. Humana Hosp. Alaska, 843 P.2d 1219 (Alaska 1992).

Forcible entry and detainer action. —

The superior court was required to provide adequate hearing procedures and due process in a forcible entry and detainer action brought by a village corporation established under the Alaska Native Claims Settlement Act against the holder of a grazing lease on lands owned by the corporation. Leisnoi, Inc. v. Stratman, 960 P.2d 14 (Alaska 1998).

Terminating state grazing leases without affording the lessee notice and hearing would undermine both the policy evinced by Alaska Const., art. VIII and the explicit due process guarantee provided by this section. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

While the adjudicatory provisions of the Alaska Administrative Procedure Act (AS 44.62) are not applicable to the termination of grazing leases by the state division of lands, it is incumbent upon the state to afford notice and a hearing to ensure due process before a state grazing lease may be terminated for noncompliance. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Procedure required by due process prior to termination of grazing lease. See McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Division of lands did not afford minimum due process protection before termination of grazing lease. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Holder of state mining claims deemed abandoned under AS 38.05.265 for failure to record annual labor statement was not denied due process rights by commissioner of natural resources’ refusal to allow a hearing before terminating its property rights in its claims. AU Int'l, Inc. v. Department of Natural Resources, 971 P.2d 1034 (Alaska 1999).

Summary property attachment authorized by Civ. R. 89 violates this section and the due process clause of the 14th amendment of the United States Constitution.Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Civil Rule 89 does not afford the debtor a meaningful opportunity for a hearing before his property is seized by process issued by the state upon ex parte application of another person. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Under Civ. R. 89, the plaintiff is not required to prove or allege any special circumstances requiring the immediate attachment of the defendant’s property. And the defendant is neither given notice nor an opportunity to present any defense he might have to the plaintiff’s underlying claim before the property is attached. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Civil Rule 89 is not confined to de minimus deprivations. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

There is no special state or creditor interest that would justify summary attachment where a debtor is a resident of the forum and the creditor could have easily obtained personal jurisdiction over him. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

It is undisputed that Alaska’s attachment rule of procedure, Civ. R. 89, contemplates the taking of property. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

The freezing of a debtor’s checking account pending litigation presents one example of a significant interference with property interests authorized by Civ. R. 89. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

The availability of a procedure under AS 09.40.110 by which a debtor may secure the release of his property by posting his own bond does not cure the defect of a summary deprivation. The defendant would be deprived of security necessary to post bond. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Consent to judgment does not moot constitutional challenge to Civ. R. 89. —

An attachment upon a debtor’s property under Civ. R. 89 gives the creditor great leverage: It pressures the debtor to do whatever is necessary to recover his property. Since this pressure often causes debtors to abandon legal rights, a challenge to the constitutionality of Civ. R. 89 may evade review. Therefore a debtor’s consent to judgment does not moot his constitutional challenge under this section. Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

Opportunity to brief and argue a motion for reconsideration of a memorandum decision modifying a divorce decree sufficed to satisfy constitutional due process. Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

Suspension of hunting guide license. —

See note under catchline “A hunting guide license is a sufficient property interest,” etc., analysis line II B “Property Rights,”. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Euthanization of dog. —

In a case where a city ordered a dog owner to euthanize or banish from within city limits the owner’s dog after the dog bit the owner’s coworker without provocation, the city’s dog bite ordinance did not violate the owner’s due process rights; owner received notice, opportunity to be heard, and a de novo trial in superior court. Haggblom v. City of Dillingham, 191 P.3d 991 (Alaska 2008).

Terminated National Guard member. —

A member of the Alaska National Guard who was involuntarily terminated from employment had a property interest in full severance pay and a protected liberty interest in his reputation entitling him to a pretermination administrative hearing. State, Dep't of Military & Veterans Affairs v. Bowen, 953 P.2d 888 (Alaska 1998).

Driver license revocations. —

Considering the importance of the driving privilege, the greater potential for effective communication in an in-person context, the need for effective communication where the credibility of a party is at issue, and the limited nature of the prejudice that the state would suffer by providing in-person hearings in cases of driver license revocations, such hearings should be provided where requested by the party. Whitesides v. Dep't of Pub. Safety, DMV, 20 P.3d 1130 (Alaska), cert. denied, 534 U.S. 888, 122 S. Ct. 200, 151 L. Ed. 2d 142 (U.S. 2001).

Claim against insolvent insurer. —

Trial court properly conducted a three-day evidentiary hearing of the denial of the claim of a creditor of an insolvent life insurer and denied the claim based on the evidence presented at the hearing; the trial court’s reference to substantial evidence at the end of the hearing did not prove that the trial court had applied the wrong standard of review as the transcript established that no deference was given to the receiver’s decision. The trial court did not deprive the creditor of its procedural due process rights. In re Life Ins. Co., 76 P.3d 366 (Alaska 2003).

D.Vagueness

When vague statute violates due process. —

A vague statute violates the due process clause if its indefinite contours confer unbridled discretion on government officials and thereby raises the possibility of uneven and discriminatory enforcement. Brown v. Municipality of Anchorage, 584 P.2d 35 (Alaska 1978).

Even though a statute is vague, a conviction will not be overturned if: (a) There can be no question as to its applicability to the particular offense involved, and (b) a construction may be placed upon the statute so that in the future the type of offenses coming within its purview may reasonably be understood. Holton v. State, 602 P.2d 1228 (Alaska 1979).

The term “crime against nature” is declared void for vagueness. Harris v. State, 457 P.2d 638 (Alaska 1969).

The statutory term “sodomy” is not void for vagueness. Harris v. State, 457 P.2d 638 (Alaska 1969).

Statutory scheme regarding worthless checks not unconstitutionally vague. —

See Mohn v. State, 584 P.2d 40 (Alaska 1978).

In order to prove violation of AS 11.41.410(a)(1) , the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim’s lack of consent. Construed in this way, the statute does not punish harmless conduct and is neither vague or overbroad. Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983).

AS 11.73.099 , as interpreted, was not unconstitutionally vague. —

See Morrow v. State, 704 P.2d 226 (Alaska Ct. App. 1985).

Former AS 11.15.134(a) not unconstitutionally vague. —

The phrase “lewd or lascivious act” in former AS 11.15.134(a), which made it a crime to commit a lewd or lascivious act upon or with the body of a child under 16 years of age, intending to arouse the sexual desires of either the actor or the child, was not unconstitutionally vague when viewed in context of the entire statute. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Former AS 11.45.030 unconstitutional. —

Former AS 11.45.030, which made disorderly conduct and disturbance of the peace a misdemeanor, as it existed prior to its 1973 amendment, in its entirety, was void for vagueness. Poole v. State, 524 P.2d 286 (Alaska 1974).

Former AS 11.45.030 as it existed prior to its 1973 amendment was void for vagueness because the conduct and speech sought to be prohibited were determined by the impermissibly vague standards of “annoyance” and “disturbance” to another. Poole v. State, 524 P.2d 286 (Alaska 1974).

Contributing to delinquency of minor not vague. —

Former statute prohibiting conduct which “causes or tends to cause, encourage or contribute to the delinquency” of a minor gave sufficient notice and limited the discretion of enforcement authorities when the statute was interpreted to prohibit only advocacy that was directed to inciting or producing imminent lawless action and was likely to incite or produce such action. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Driving while intoxicated. —

Statute providing that a person commits the crime of driving while intoxicated if he operates or drives a motor vehicle while he is under the combined influence of intoxicating liquor and another substance was unconstitutionally vague since the designation of “the combined influence of intoxicating liquor and another substance” offered no notice of what specific substances a driver should avoid. Williford v. State, 674 P.2d 1329 (Alaska 1983).

Implied consent. —

Anchorage Municipal Code § 9.28.021, the municipality’s Implied Consent Ordinance, which was virtually identical to the state Implied Consent Statute, was not unconstitutionally vague. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Alaska Environmental Conservation Act (AS 46.03) is not void for vagueness under the Alaska and United States constitutions. Stock v. State, 526 P.2d 3 (Alaska 1974).

When the somewhat shadowy boundaries of the area of prohibited conduct were contrasted with the over-all purpose of the Alaska Environmental Conservation Act (AS 46.03) and the absence of any evidence of discriminatory application, the supreme court could not say that the presumption of constitutionality of the statute was overcome. Stock v. State, 526 P.2d 3 (Alaska 1974).

Criminal conduct. —

The term “without lawful excuse” in AS 11.51.120(a) is not impermissibly vague; the section, as construed, affords adequate notice of the conduct it prohibits, so that reasonable people need not guess at its meaning. Taylor v. State, 710 P.2d 1019 (Alaska Ct. App. 1985).

Criminal intent. —

Although the crime of robbery is not defined in AS 11.41.500 as requiring an intent to permanently deprive another of property, the provisions of that section clearly require proof of criminal intent and therefore do not violate this section. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Sexual assault statute. —

In order to prove violation of AS 11.41.410(a)(1) , the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim’s lack of consent. Construed in this way, the statute does not punish harmless conduct and is neither vague or overbroad. Reynolds v. State, 664 P.2d 621 (Alaska Ct. App. 1983).

Ordinance prohibiting loitering for purpose of solicitation of prostitution. —

A fair reading of a municipal ordinance prohibiting loitering for the purpose of solicitation of prostitution disclosed that the ordinance on its face gave enforcement officials excessive discretion, inviting by its inexactitude arbitrary enforcement and uneven application, since it set out separate and disjunctive circumstances which might be considered in determining whether a person who was loitering manifested the purpose of solicitation of prostitution and one of these circumstances was that the person “is a known prostitute or panderer,” thereby subjecting to arrest anyone known to the police to have committed a prostitution-related offense within the last five years who may have been only window shopping, strolling, or waiting for a bus. Therefore, the ordinance was void for vagueness. Brown v. Municipality of Anchorage, 584 P.2d 35 (Alaska 1978).

Municipal ordinance prohibiting prostitution and related activities held not unconstitutionally vague or overbroad. See Summers v. Anchorage, 589 P.2d 863 (Alaska 1979).

Game regulation. —

A game regulation which provided that “[n]o person may possess or transport any game or parts of game illegally taken” was overbroad, and a limiting construction implying that the accused must have known or reasonably should have known that the game was illegally taken, was necessary to render the regulation constitutional. State v. Rice, 626 P.2d 104 (Alaska 1981).

When the element of mens rea was implied in a game regulation which provided: “No person may possess or transport any game or parts of game illegally taken,” the regulation was not void for vagueness. State v. Rice, 626 P.2d 104 (Alaska 1981).

If enforced according to its literal terms, as imposing liability on any person who possesses or transports illegally taken game without regard to whether such person knew or should have known of the illegality, a regulation which provided: “No person may possess or transport any game or parts of game illegally taken” would bear no reasonable relationship to the legitimate regulatory purpose underlying it. Therefore, an interpretation of the regulation as requiring an element of mens rea is required by substantive due process principles. State v. Rice, 626 P.2d 104 (Alaska 1981).

Fishing regulation prohibiting the snagging of fish, which clearly defines the term “snag,” and requires that intent to snag be proven is not unconstitutionally vague, since the definition provides constitutionally sufficient notice to potential violators, and the intent requirement minimizes the possibility of arbitrary enforcement. Woodards v. State, 604 P.2d 250 (Alaska 1979).

The closure of a shellfish district by emergency order was not in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, in violation of the due process rights of a fishing vessel’s owners. F/V Am. Eagle v. State, 620 P.2d 657 (Alaska 1980).

Offshore mining lease. —

Regulations employed by division of lands in determining whether to grant offshore mining lease were not void for vagueness. State, Dep't of Nat. Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806 (Alaska 1978).

Regulation requiring employers to furnish safe place of employment, promulgated by Department of Labor, held not void for vagueness. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Drag racing on highway. —

Administrative regulation prohibiting drag racing on highways held not void for vagueness. See Jernigan v. State, 583 P.2d 224 (Alaska 1978).

Disciplinary rules of Alaska Bar Association. —

Although former Disciplinary Rules 1-102(A)(5), 7-102(A)(1), and 7-105(A) of the Code of Professional Responsibility of the Alaska Bar Association, which prohibited engaging in conduct that was prejudicial to the administration of justice, taking action on behalf of a client when the lawyer knows or when it is obvious such action would serve merely to harass or maliciously injure another, and threatening to present criminal charges solely to obtain an advantage in a civil matter, were capable of broad interpretation, the meaning of these rules was sufficiently clear to satisfy the requirements of due process. In re Vollintine, 673 P.2d 755 (Alaska 1983).

Denial of surgical privileges by hospital. —

Basic principles of due process of law require that criteria established for granting or denying a doctor surgical privileges not be vague and ambiguous, and that as established, they be applied objectively. Kiester v. Humana Hosp. Alaska, 843 P.2d 1219 (Alaska 1992).

E.Juveniles

Statute governing delinquent minors and children in need of aid. —

The statutory scheme of AS 47.10.010 et seq., governing delinquent minors and children in need of aid, is not so vague as to deprive parents of their procedural due process rights. R.C. v. State, Dep't of Health & Soc. Servs., 760 P.2d 501 (Alaska 1988).

States must afford juveniles due process of law in delinquency proceedings that might result in the child’s incarceration, and accordingly juveniles must be afforded the right to be represented by counsel, must be given proper and timely notice, must be given the right of confrontation and cross-examination of witnesses, and afforded the privilege against self-incrimination. Doe v. State, 487 P.2d 47 (Alaska 1971).

Due process must be afforded to juveniles in delinquency proceedings. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The due process clause of the 14th amendment applies when a child is charged with misconduct for which he may be incarcerated in an institution, regardless of the labels of the adjudication and institution, so the child is entitled to notice of charges, counsel, confrontation and cross-examination, and the privilege against self-incrimination. RLR v. State, 487 P.2d 27 (Alaska 1971).

Due process requires that children have the right to a public trial by jury where they are charged with acts which would be a crime if committed by an adult. Doe v. State, 487 P.2d 47 (Alaska 1971).

Society uses incarceration for rehabilitative purposes with adult criminals as well as juvenile delinquents, yet none suggest that benevolent purposes justify deprivation of rights applicable to adult prosecutions. RLR v. State, 487 P.2d 27 (Alaska 1971).

Regardless of benevolent-sounding labels, incarceration, when applied to children, is a taking of liberty under the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Defendant’s Sixth Amendment right to a jury was not infringed when the trial court was allowed to consider defendant’s prior adjudication as a delinquent as an aggravating factor at sentencing under AS 12.55.155 ; as a juvenile in Alaska, defendant had a right to a jury trial, and defendant, as a juvenile, had a right to proof beyond a reasonable doubt. Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005).

Parens patriae principle. —

The parens patriae principle is the core of the established view that juvenile proceedings are different from criminal trials. Accordingly, a parens patriae rationale has been used to justify restrictions on due process safeguards — although protections have been increasingly extended in recent years. Rust v. State, 582 P.2d 134 (Alaska 1978).

In the cases finding rights to treatment for juveniles and mental patients, reliance upon a parens patriae rationale for commitment is crucial. Both sets of cases view treatment as the quid pro quo which must be present in order to justify confinement under limited due process safeguards. Rust v. State, 582 P.2d 134 (Alaska 1978).

Because AS 09.10.140(c) foreclosed a son’s personal injury action due to the fact that his parents failed to timely file suit, as the injury occurred one month before the son’s eighth birthday and the parents did not sue the dog owners until nearly five years later, it violated his procedural due process right of access to the courts; given the important interest involved, the state’s interests were not sufficient to warrant the deprivation of the minor’s rights. Sands v. Green, 156 P.3d 1130 (Alaska 2007).

Foreclosure of personal injury suit filed by parent or guardian. —

When AS 09.10.140(c) forecloses a minor’s personal injury claim because his or her parents or guardians have failed to timely file suit, it violates that minor’s procedural due process right of access to the courts. Sands v. Green, 156 P.3d 1130 (Alaska 2007).

Delinquency must be proved beyond a reasonable doubt under the due process clause of the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Due process standards must be observed at a detention inquiry since it may result in the deprivation of the child’s liberty. Due process requires at the very least that detention orders be based on competent, sworn testimony, that the child have the right to be represented by counsel at the detention inquiry, and that the detention order state with particularity the facts supporting it. Doe v. State, 487 P.2d 47 (Alaska 1971).

Due process needed if juvenile could be deprived of liberty. —

While the U.S. supreme court has not held that children must be afforded due process rights in the pre-adjudication stages of the juvenile process, the Alaska supreme court believes that due process safeguards are necessary not only at the adjudicative hearing, but at any stage which may result in deprivation of the child’s liberty. Doe v. State, 487 P.2d 47 (Alaska 1971).

The waiver hearing is a critically important stage in criminal proceedings against a child. P.H. v. State, 504 P.2d 837 (Alaska 1972).

At stake at a child’s waiver hearing is the statutory promise of special rehabilitative treatment in lieu of the harsher sanction of criminal conviction. Because the consequences of waiver are great, the hearing must measure up to the essentials of due process and fair treatment. P.H. v. State, 504 P.2d 837 (Alaska 1972).

The constitutional prerequisites for a valid waiver of juvenile court treatment are reflected in Rule of Children’s Procedure 3, which guarantees the child a hearing before the children’s court judge after adequate notice thereof, counsel at the hearing who has had access to records and reports relevant to issues before the court, and a statement of reasons accompanying the waiver order. P.H. v. State, 504 P.2d 837 (Alaska 1972).

To waive children’s court jurisdiction without a hearing or opportunity for adversary presentation would be a denial of fair process, and to waive such jurisdiction without substantial evidence having been presented that the child is unamenable to juvenile rehabilitation programs is no less so. P.H. v. State, 504 P.2d 837 (Alaska 1972).

The probable cause determination of a court at a waiver hearing concerning juveniles could not be based upon hearsay testimony. P.H. v. State, 504 P.2d 837 (Alaska 1972).

A juvenile’s right to counsel in a delinquency proceeding has been clearly established in this jurisdiction. A.A. v. State, 538 P.2d 1004 (Alaska 1975).

Since the disposition hearing is one of the most critical phases of such a proceeding, the conduct of the hearing in the absence of a minor’s counsel is therefore erroneous. A.A. v. State, 538 P.2d 1004 (Alaska 1975).

Pre-adjudication review of defendant’s juvenile record by the family court judge did not deny defendant his constitutional right to due process of law where the record was reviewed for the purpose of determining the proper interim detention of the child and did not influence the judge in adjudicating defendant a delinquent. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The trial court can consider danger to the community as a factor in assessing the amount of bail or fixing the items of a conditional release. Such a consideration necessitates a review of prior convictions. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Voluntariness of juvenile’s confession. —

See S.B. v. State, 614 P.2d 786 (Alaska 1980).

Hearing required for revocation of probation. —

The requirement in Children’s (now Delinquency) Rule 12(a) of a disposition hearing applies to a court-ordered revocation of a juvenile delinquent’s administratively granted probation. L.C. v. State, 625 P.2d 839 (Alaska 1981).

The hearing in connection with a juvenile delinquent’s probation revocation must be broader than merely determining probable cause that probation conditions are violated. L.C. v. State, 625 P.2d 839 (Alaska 1981).

Burden of proving amenability to juvenile treatment. —

Section 47.12.030(a), placing the burden on defendant to prove his amenability to juvenile treatment, does not violate the equal protection and due process clauses of the Alaska Constitution. Wilson v. State, 967 P.2d 98 (Alaska Ct. App. 1998).

F.Criminal Matters
1.In General

Constitutionality of criminal nonsupport statute. —

The criminal nonsupport statute does not require a defendant to prove the absence of a lawful excuse or to incriminate himself. Taylor v. State, 710 P.2d 1019 (Alaska Ct. App. 1985).

Provisions governing sale of alcoholic beverages. —

AS 04.16.200(b) (governing the sale of alcoholic beverages by unlicensed persons), when read in conjunction with AS 04.11.010 (requiring a license or permit for such sales), defines an offense, affords adequate notice of the proscribed conduct and the prescribed penalty, and satisfies due process requirements. Burnor v. State, 829 P.2d 837 (Alaska Ct. App. 1992).

Constitutionality of undisclosed electronic recording provision in Victims’ Rights Act. —

Undisclosed recording is as valuable for defense representatives as it is for the police and the objections that it violates the right to privacy and the right to be treated with dignity, respect, and fairness are of little weight when compared to its benefits; it would be paradoxical to uphold a law that bars defense representatives from pursuing the practice, while leaving the police and virtually everyone else in the state free to electronically record their conversations without disclosure. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

Implying criminal intent into statutes. —

Although the supreme court could conceive of cases where it might decline to imply criminal intent into statutes silent in this respect, hereafter it will resolve such questions on a case by case basis. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Such intent read into AS 28.35.060 . —

With regard to AS 28.35.060 , which sets forth the duty of the operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle which is driven or attended by a person to give information and to render assistance, although on its face that section fails to require criminal intent for conviction, this does not violate due process of law under the 14th amendment of the United States Constitution and this section of the Alaska constitution, since the requisite intent may be read into the statute by implication. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Former AS 11.20.260 held unconstitutional. —

Former AS 11.20.260, providing that one who finds lost property and appropriates it to his own use without either advertising his discovery in a paper of general circulation or notifying the police officer nearest the place of the finding is guilty of larceny, failed to set forth the requirements of the common-law crime of larceny by appropriation of lost property. Instead, a new, distinct offense had been created, and the statute was constitutionally defective and invalid because of its omission of the requirement of criminal intent. State v. Campbell, 536 P.2d 105 (Alaska 1975), overruled, Kimoktoak v. State, 584 P.2d 25 (Alaska 1978), to the extent that the decision holds that criminal intent can be found by implication only in statutes which codified common-law crimes.

Felon in possession charge based on reversed conviction. —

The due process clause of the Alaska Constitution does not prohibit the state from convicting defendant of a felon in possession of a concealable weapon charge when his underlying felony conviction was reversed on constitutional grounds. Clark v. State, 739 P.2d 777 (Alaska Ct. App. 1987).

Conviction of accessory when principal is undercover agent constitutional. —

Conviction of a professional hunting guide for hunting violations as an accessory when the principal was an undercover agent for the government did not violate the due process clauses of the United States and Alaska constitutions; any government overreaching is adequately covered by the defense of entrapment. Vaden v. State, 742 P.2d 784 (Alaska Ct. App. 1987), aff'd in part, modified, 768 P.2d 1102 (Alaska 1989).

Registration of sex offenders. —

Because the Registration Act, ch. 41, SLA 1994, which requires “sex offenders” to register with police authorities, is likely penal in nature because of the provision for public dissemination of information, plaintiffs, who pled no contest to sex offenses pursuant to plea bargains that did not include any duty to register, are likely to prevail on claims for violation of the plea agreements and due process. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Constitutionality of advice and written consent requirements. —

Advice and written consent provisions in the Alaska Victims’ Rights Act interfere with investigations by criminal defendants because adhering to them necessarily carries a message that it is undesirable to cooperate with defense representatives. State v. Murtagh, 169 P.3d 602 (Alaska 2007).

When due process is violated in criminal trials. —

The concept of due process of law in the trial of a criminal defendant apart from trials conducted in violation of express constitutional mandates is violated only where the barriers and safeguards are so relaxed or forgotten that the proceeding is more a spectacle or trial by ordeal than a disciplined contest. Lee v. State, 511 P.2d 1076 (Alaska 1973).

Defendant could have the trial court consider if he was entitled to post-conviction DNA testing, and if his claim is barred by AS 12.72.020(b)(2) , regarding new evidence, the trial court has to consider if the Alaska Constitution’s due process clause allows defendant to pursue his claim nonetheless. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Although Alaska R. Crim. P. 25(b) permitted the substitution of a judge in a bench trial, due process required a new trial in a sexual assault case because new impeachment evidence was very important in assessing the credibility of a victim and the State’s allegations. The victim had previously accused someone else of raping her under similar circumstances. Morgan v. State, 139 P.3d 1272 (Alaska Ct. App. 2006).

Criminal action for pollution without proceedings constitutional. —

Defendant’s constitutional rights were not violated by commencement of criminal action against him for pollution without completing administrative proceedings. Stock v. State, 526 P.2d 3 (Alaska 1974).

Prosecutorial vindictiveness. —

State’s actions in informing defendant that it would seek reindictment of a previously dismissed manslaughter charge if defendant delayed trial on failure to render aid charges by attacking the indictments on the latter charges was prosecutorial vindictiveness which violated due process. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Vindictive prosecution violates a defendant’s constitutional rights to due process. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

The supreme court will not apply a presumption that assumes that vindictive prosecution has taken place when charges are increased prior to or at the time of the original indictment. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

Prosecution did not vindictively increase defendant’s charges in retaliation for the refusal to waive defendant’s constitutional right to grand jury indictment, where the prosecution only asked if defendant would waive grand jury indictment; prosecution made no mention whatsoever of any adverse consequences should defendant decline to do so; and the increased charge was supported by the evidence available to the prosecution. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

Assertion of prosecutorial vindictiveness because defendant was indicted on felony charges after asserting his right to a jury trial on misdemeanor offenses did not raise presumption. Norbert v. State, 718 P.2d 160 (Alaska Ct. App. 1986).

Establishment of prosecutorial vindictiveness. —

The existence of prosecutorial vindictiveness must be established by an objective standard, on the basis of the totality of the circumstances in each case. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

No prosecutorial vindictiveness established where state reinstated charge after defendant withdrew guilty pleas on other charges. —

Morgan v. State, 673 P.2d 897 (Alaska Ct. App. 1983).

Prosecutorial rebuttal. —

It is insufficient for the prosecution to rebut a charge of prosecutorial vindictiveness by establishing a lack of actual malice; instead, a prima facie showing of vindictiveness must be rebutted by negating the possibility of vindictiveness. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Prosecutorial mistake, negligence or misunderstanding will not suffice to rebut a prima facie showing of prosecutorial vindictiveness. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Function under Interstate Agreement on Detainers. —

A defendant was not denied due process of law under the Fourteenth Amendment to the United States Constitution and this section of the Alaska Constitution because the state did not supplement its extradition proceedings with a specific request for return of the defendant under the Interstate Agreement on Detainers, for the primary function of the Interstate Agreement on Detainers is to give the defendant a means, if he wishes to exercise it, of compelling the state to return him for retrial. Conway v. State, 707 P.2d 930 (Alaska Ct. App. 1985).

Independent expert examination of prosecution’s evidence before trial. —

Due process of law does not require that the defendant be permitted independent expert examination of evidence in the possession of the prosecution before such evidence is introduced at the trial. Lee v. State, 511 P.2d 1076 (Alaska 1973).

Presence of uniformed officers in court. —

Anthony v. State , 521 P.2d 486 (Alaska 1974) precludes the appearance before members of the jury of uniformed officers or guards who are physically restraining a defendant or exercising actual custody and control over his person. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Mere presence of uniformed officers in a neutral area of the courtroom, without any overt manifestation of actual physical restraint or custody, is not sufficient to deprive the defendant of the right to a fair trial. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Restriction of defenses. —

Restriction of the defense of lack of profit to misdemeanor prosecutions under AS 04.16.200(a) does not constitute a violation of due process; the section treats all persons charged with felonies alike and, therefore, fairly. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), discussing in depth the history of the insanity defense in Alaska.

Determining “recklessness”. —

Due process is not violated by the provision in AS 11.81.900(a)(3) that intoxication is not to be considered in determining recklessness with regard to circumstances surrounding one’s conduct. Neitzel v. State, 655 P.2d 325 (Alaska Ct. App. 1982).

Prosecutorial promise of immunity. —

As a matter of both federal and state due process, a prosecutor’s promise of immunity made in return for a surrender of the privilege against self-incrimination is binding on the prosecution. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

If a prosecutorial promise of immunity is made, whether or not it is statutorily authorized, it cannot be breached without allowing the promisee an opportunity to reconsider and revoke his part of the bargain. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

If a grand jury seeks, under AS 12.40.070 , to compel a prosecutor to override a prior immunity grant, any resulting indictment is to be dismissed with prejudice. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s grant will serve to bind the state to whatever promise is made, i.e., to use and derivative use and/or transactional immunity, even in other judicial districts. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s promise of use and derivative use immunity will also bind the federal government, under the ruling in Murphy v. Waterfront Comm’n of N.Y. Harbor , 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). However, a state grant of transactional immunity will require independent endorsement from federal authorities before it will absolutely preclude a federal prosecution. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Constitutionality of bail statute. —

AS 12.30.040 does not deny substantive due process or equal protection rights by providing that if a person has been convicted of an unclassified or class A felony, the person may not be released on bail either before sentencing or pending appeal since there is a legitimate basis for the legislative classification. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Presence of defendant at post-verdict conference. —

A post-verdict conference is a stage of the trial requiring the presence of the defendant. Meyer v. State, 627 P.2d 636 (Alaska 1981).

Where, as a matter of law, a post-conviction conference could not have resulted, on the facts, in impeachment of the verdict and the defendant’s presence therefore would not have impacted the trial court’s decisional process, the defendant’s exclusion, while error, was harmless beyond a reasonable doubt. Meyer v. State, 627 P.2d 636 (Alaska 1981).

Denial of motion for new trial upheld. —

The trial court was within its discretion denying defendant’s motion for a new trial based on newly discovered evidence where new testimony would not produce an acquittal at a new trial, in part because of the witness’ observable lack of credibility while testifying. Stiegele v. State, 714 P.2d 356 (Alaska Ct. App. 1986).

Burden of proof at post-acquittal commitment hearing. —

It is not a violation of the due process clause to place the burden of proving insanity on a defendant during prosecution of the case-in-chief. A fortiori, due process does not preclude allocation of the burden of proof to the defendant at the post-acquittal commitment hearing. State v. Alto, 589 P.2d 402 (Alaska 1979).

2.Competency to Stand Trial

Competency to stand trial. —

Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Conviction of a person who is incompetent to stand trial violates due process of law. Schade v. State, 512 P.2d 907 (Alaska 1973).

One of the primary reasons for requiring that a defendant be competent before standing trial is to safeguard the accuracy of the guilt-finding process. Schade v. State, 512 P.2d 907 (Alaska 1973).

Level of competency required. See Schade v. State, 512 P.2d 907 (Alaska 1973).

Standard of judging competency. —

See Schade v. State, 512 P.2d 907 (Alaska 1973).

3.Confessions

Use of deception to elicit incriminating statements. —

The deceptive use by state troopers of defendant’s girlfriend to elicit incriminating statements from the defendant in a telephone conversation did not deprive the defendant of his right to due process. Deceptive tactics are not per se impermissible under Alaska law and will violate due process only when they are coercive or tend to produce an untruthful confession. Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992).

Due process in an interrogation context. —

The following factors, combined with all of the surrounding circumstances, should be considered in determining the existence of a due process violation in an interrogation context: The duration and conditions of detention, the attitudes of the police manifested toward the accused, and the “diverse pressures which sap or sustain his powers of resistance and self-control.” Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Admission into evidence of defendant’s unrecorded confession. —

Trial court’s error in admitting defendant’s unrecorded confession into evidence at his trial for robbery could not be deemed harmless error, where the other evidence against him was strong but not overwhelming. Billingsley v. State, 807 P.2d 1102 (Alaska Ct. App. 1991).

Statements of 15-year-old defendant charged with rape and murder that were made in third and fourth interviews were sufficiently insulated from Miranda violations occurring in the first and second interviews because defendant did not reveal his involvement in the homicide until the third interview. Kalmakoff v. State, 199 P.3d 1188 (Alaska Ct. App. 2009), rev'd, 257 P.3d 108 (Alaska 2011).

A statement of involvement in criminal activity is not admissible unless it is voluntary. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Judicial determination of the voluntariness of confessions. —

The court first determines what happened — whether a confession was made and what the basic circumstances surrounding it were. Next the court must decide by means of inference what the effect of the factual circumstances upon the mental state of the accused actually was. And, finally, from its decision as to the accused’s state of mind the court must draw its ultimate conclusion as to the voluntariness, in a legal sense, of his confession. Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981).

Resolution of factual issues. —

Express resolution by the trial court of disputed factual issues in cases involving voluntariness of confessions is not required by due process, under either the United States or Alaska Constitutions; rather, it is more directly and practically based upon the fact that such findings are necessary to secure the right to appeal provided for under statute ( AS 22.05.010(a) , (b) and AS 22.07.020(d) ) and rule (Cr. R. 32.1(a) and R. App. P. 202). Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981).

Statement of findings required. —

In determining the voluntariness of confessions in future cases, trial courts must at a minimum expressly state their findings as to disputed facts essential to resolution of the issue. Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981).

Standard for determining voluntariness of confession. —

Although the United States Supreme Court adopted the preponderance-of-the-evidence standard for determining the voluntariness of a confession and the Alaska Supreme Court has consistently held that the prosecution has the burden of showing that a confession was voluntary by a preponderance of the evidence, the Alaska supreme court has never determined what standard is appropriate. Troyer v. State, 614 P.2d 313 (Alaska 1980).

Trial judge determines voluntariness. —

The applicable rule in Alaska for determining the voluntariness of a confession is the so-called orthodox rule under which the trial judge solely and finally makes such determination. Stobaugh v. State, 614 P.2d 767 (Alaska 1980).

The supreme court rejects a per se rule which would condemn any incriminating statement obtained by means of a promissory inducement as involuntary. Stobaugh v. State, 614 P.2d 767 (Alaska 1980).

Role of supreme court in determining voluntariness of confession. —

In determining whether a confession is voluntary or is the “product of a mind overborne by coercion,” the supreme court has previously stated that it will consider the “totality of circumstances surrounding the confession” and conduct an independent review of the record. Sprague v. State, 590 P.2d 410 (Alaska 1979). See also Stobaugh v. State, 614 P.2d 767 (Alaska 1980).

Relevant criteria in determining whether a confession is voluntary are the age, mentality and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Burden of proving voluntariness. —

The prosecution has the burden of showing that there is sufficient evidence to support a determination, by a preponderance of the evidence, that the admission or confession was voluntary. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Promise of leniency affecting voluntariness. —

Defendant’s own account of the state trooper’s promise of leniency did not justify a finding that his confession was involuntary. Young v. State, 743 P.2d 941 (Alaska Ct. App. 1987).

Confessions based on voluntarily-induced intoxication. —

The majority of courts which have considered due process challenges to confessions based on the voluntarily-induced intoxicated state of the defendant have allowed admission of the confession, unless it is shown that he was intoxicated to a degree of mania or to the point that he could not understand the meaning of his statements. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Concurrent civil and criminal matters. —

Superior court did not expressly conduct a balancing of the parties’ interests before denying the resident’s motion to stay; because the resident in a defamation case was defending himself in a related criminal case, the trial court had to balance both parties’ interests to determine whether the requested stay of civil proceedings was appropriate. Armstrong v. Tanaka, 228 P.3d 79 (Alaska 2010).

4.Confrontation

Identification at scene of crime. —

Identification by rape victim at scene of crime did not violate defendant’s due process rights. Walker v. State, 652 P.2d 88 (Alaska 1982).

A confrontation between an accused and witnesses might be so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is thereby denied due process of law. McCracken v. State, 521 P.2d 499 (Alaska 1974).

When identification procedure is unfair. —

A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. Buchanan v. State, 561 P.2d 1197 (Alaska 1977).

Test as to whether lineup prejudicial. —

The test applied to the resolution of the issue as to whether a lineup was prejudicial and suggestive is whether the lineup procedures were “so unnecessarily suggestive and conducive as to deny due process.” Blue v. State, 558 P.2d 636 (Alaska 1977).

The determination as to whether a lineup was prejudicial and suggestive must be made based on the “totality of the circumstances.” Blue v. State, 558 P.2d 636 (Alaska 1977).

Violation of due process guarantee in confrontation depends on the totality of the circumstances surrounding it. McCracken v. State, 521 P.2d 499 (Alaska 1974).

In examining pretrial photographic identification procedures, the supreme court has consistently considered the totality of the circumstances. The “totality” approach includes examining both the suggestiveness of the identification procedure and its underlying reliability. Viveros v. State, 606 P.2d 790 (Alaska 1980).

Evidence of suggestive pretrial identification procedures has not been subject to strict exclusionary rules either in the United States Supreme Court or in the Alaska Supreme Court. Suggestiveness alone does not require exclusion. The test is whether, under the totality of the circumstances, the identification is reliable. Howe v. State, 611 P.2d 16 (Alaska 1980).

Court must inquire into each case on ad hoc basis. —

When the photographic or other identification procedure is alleged to be prejudicial the court must inquire into each case on an ad hoc basis to determine if the totality of the circumstances made the procedure prejudicial. Buchanan v. State, 561 P.2d 1197 (Alaska 1977).

Inquiry to judge legitimacy of in-court identifications. —

See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Lineup held not so suggestive as to violate due process. —

See Blue v. State, 558 P.2d 636 (Alaska 1977); Benefield v. State, 559 P.2d 91 (Alaska 1977).

Photographic lineup does not violate due process. —

Although defendant was in custody at the time of the lineup, his right to due process was not violated when a black and white photographic lineup was used instead of a corporeal lineup. Williams v. State, 652 P.2d 478 (Alaska Ct. App. 1982).

A photographic lineup was not so suggestive as to create “a very substantial likelihood of irreparable misidentification” where as many as three of the six photographs used in the lineup matched the victim’s description of a light-skinned black with short hair. Buchanan v. State, 561 P.2d 1197 (Alaska 1977).

A photographic lineup was not so suggestive as to create a very substantial likelihood of irreparable misidentification where the description given the police by the witnesses to the robbery matched at least three of the persons depicted in the photographic lineup and the prosecution witnesses had ample opportunity to observe the robber during the time he was on the premises of the store. Gould v. State, 579 P.2d 535 (Alaska 1978).

Although police used a show-up, rather than an ordinary lineup, to obtain the identification of the perpetrator of a crime does not in and of itself amount to a denial of due process. If, under the totality of the circumstances, there is no substantial likelihood of misidentification, due process is satisfied. Vessell v. State, 624 P.2d 275 (Alaska 1981).

“Show-up” identification of defendant did not violate his due process rights where a violent crime had been committed some thirty minutes before, and the suspect remained at large; by bringing the victim to the scene of the traffic stop, the police could either positively identify defendant as the man they were looking for, or eliminate him as a suspect and resume their search of the city for a similar brown sedan. Anderson v. State, 123 P.3d 1110 (Alaska Ct. App. 2005).

No waiver of alleged unconstitutional post-indictment identification. —

Failure of defendant’s counsel to raise issue of alleged unconstitutional post-indictment identification at trial did not waive the issue. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Accidental pretrial confrontations. —

An accidental pretrial confrontation may be the subject of cross-examination, but on the whole the question is one going to the weight rather than the admissibility of the evidence. Kimble v. State, 539 P.2d 73 (Alaska 1975).

When a pretrial confrontation is purely accidental and is not prearranged by the state, the supreme court will not ordinarily inquire into whether a denial of due process is the result. Kimble v. State, 539 P.2d 73 (Alaska 1975); Cox v. State, 575 P.2d 297 (Alaska 1978).

Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. Cox v. State, 575 P.2d 297 (Alaska 1978).

Evidence of showup without more does not violate due process. Cox v. State, 575 P.2d 297 (Alaska 1978).

The test as to the legitimacy of in-court identifications based, in part, on improper prior identifications, is whether the in-court identification had a source independent from the tainted confrontation. Cox v. State, 575 P.2d 297 (Alaska 1978).

The supreme court declined to adopt a “per se” test for the exclusion of evidence relating to pretrial identifications which would suppress unnecessarily suggestive pretrial identifications regardless of reliability. Viveros v. State, 606 P.2d 790 (Alaska 1980).

There was no basis for suppressing evidence of show-up confrontation where the identification was reliable, and where it fell within a widely recognized exception to the ordinary requirement for a lineup in that the police arranged a show-up immediately in the wake of a crime to promptly eliminate or arrest suspects. Howe v. State, 611 P.2d 16 (Alaska 1980).

Where a witness was told by a school principal that the individual involved in an assault on a 14-year-old girl had been apprehended and the witness was requested to go to the school office to identify him; where the witness testified that on the way to the office he expected to see the person who had assaulted the girl; and where as the witness was being interviewed by a police officer about the incident, defendant was brought out of the office, in handcuffs and escorted to a police vehicle, assuming that the confrontation in the hallway between defendant and the witness was impermissively suggestive, nevertheless, the witness’ identification was reliable and his in-court identification had a source independent from the tainted confrontation. Cox v. State, 575 P.2d 297 (Alaska 1978).

Electronic recording of custodial interrogation. —

An unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process under the Alaska Constitution, and any statement thus obtained is generally inadmissible. Stephan v. State, 711 P.2d 1156 (Alaska 1985), limited, Swanson v. City & Borough of Juneau, 784 P.2d 678 (Alaska Ct. App. 1989), limited, Hendricks v. State, 1999 Alas. App. LEXIS 86 (Alaska Ct. App. Sept. 1, 1999).

Basis of right to be present at trial. —

In Alaska, the right to be present is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him, as well as in the United States Constitution, the confrontation clause of the 6th amendment or the 14th amendment’s due process clause. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

In Alaska, the right to be present at every stage of the trial is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Common-law origins of right to be present at trial. See State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Such right implemented by Cr. R. 38. —

The constitutional right of a defendant to be present in the courtroom at every stage of the trial has been implemented as a procedural requirement by Cr. R. 38. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

The constitutional right to be present at every stage of trial has been implemented by the provisions of Cr. R. 38(a) which provides that the “defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule.” Dixon v. State, 605 P.2d 882 (Alaska 1980).

Scope of right to be present. —

Under both the United States Constitution and the Alaska Constitution the right of the defendant to be present at every stage of the trial has been recognized. Included within the scope of this right is the period of jury deliberations; thus, the defendant has the right to be present whenever any communication between the court and the jury occurs during those deliberations. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Defendant’s convictions for murder in the first degree and tampering with physical evidence were appropriate because, although defendant’s right to be present at all stages of his trial was violated, errors were harmless; also, defendant did not argue any specific prejudice arising from superior court’s decision to release juror who was ill, and even if juror had not been excused, there was no certainty that juror would have deliberated on the case. Collins v. State, 182 P.3d 1159 (Alaska Ct. App. 2008).

Trial court may exclude a criminal defendant for disruptive behavior, and although the court had to allow an excluded criminal defendant an opportunity to reclaim his right to be present if he demonstrated willingness to behave appropriately, it was not obliged to uncritically accept every promise to behave; the trial court did not abuse its discretion either by removing defendant from the courtroom or by refusing his later request to reenter where nothing in defendant’s words or in his recent or past conduct demonstrated that it was an abuse of discretion to decline to return him to the courtroom one more time. Douglas v. State, 214 P.3d 312 (Alaska 2009).

Verdict form presented without notice to defendant. —

While defendant’s federal and state constitutional right to be present throughout the trial was violated, and Alaska Crim. R. 38(a) was violated, because the court staff erred in providing the jury with a verdict form without authorization from the court and notice to defendant, the error was harmless beyond a reasonable doubt. Crouse v. Municipality of Anchorage, 79 P.3d 660 (Alaska Ct. App. 2003).

Waiver of presence by attorney held ineffective. —

In light of the constitutional mandate of defendant’s personal waiver, waiver by defendant’s attorney of defendant’s presence during the playback of testimony to the jury was ineffective, and since the defendant did not effectively waive his presence, it was constitutional error for the judge to communicate with the jury or permit the playback of testimony in defendant’s absence. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

5.Driving While Intoxicated

Constitutionality of statute not impugned. —

AS 28.35.030 is not void for vagueness because of the fact that most people reached their peak alcohol level within one hour after they stopped drinking; consequently, the fact that the police had four, instead of two or three, hours in which to obtain a sample would not make it appreciably more difficult for the typical motorist to evaluate whether they had consumed too much alcohol to legally drive. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

AS 28.35.030 was not unconstitutionally overbroad for allowing a defendant to be convicted of driving while under the influence even if his alcohol level at the time of driving was below the statutory limit, because driving with a blood alcohol level below the statutory limit is not necessarily lawful conduct. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

DWI chemical tests. —

Defendant’s motion to suppress two California DWI convictions was improperly granted because the right to an independent chemical test, although not available in California but recognized in Alaska, was not a due process right equivalent to the right to counsel or the right to a jury trial. State v. Simpson, 73 P.3d 596 (Alaska Ct. App. 2003).

Felony DWI statute. —

Because the Constitution provides that a person cannot be validly convicted of a crime unless personally present at trial and sentencing, or unless he knowingly and voluntarily waives that right, it is all but impossible for a person who has prior convictions for driving while intoxicated (DWI) or refusing a breath test to commit DWI without either recklessly or negligently disregarding those prior convictions, and therefore the state’s felony DWI statute passes constitutional muster even though the government need not prove a culpable mental state with regard to prior convictions. Hoople v. State, 985 P.2d 1004 (Alaska Ct. App. 1999).

Refusal to take breathalyzer test. —

AS 28.35.032(f) , making refusal to take a chemical test of breath authorized by AS 28.35.031 a class A misdemeanor, does not violate substantive due process or the prohibition against cruel and unusual punishment since it is reasonably related to a legitimate government purpose and the penalty does not subject a defendant to punishment out of proportion to the conduct in which he is engaged. Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983).

A person arrested for driving while intoxicated is entitled by the Alaska Constitution to an independent chemical test even if that person refuses to take the statutorily prescribed breath test. Snyder v. State, 930 P.2d 1274 (Alaska 1996).

Jury was instructed that it could not convict defendant for refusal to submit to a chemical test unless he knew or should have known that he had a legal duty to submit to a breath test; defendant’s due process rights were not violated because the jury must have found that defendant had enough notice of his legal duty to submit to a breath test to be convicted of refusal, even though the officer did not explain to him that he could not satisfy that legal duty by offering to submit to a blood test. Mattox v. State, 191 P.3d 148 (Alaska Ct. App. 2008).

Misinformation from police about consequences for refusal. —

It would be fundamentally unfair to allow the State to assert one penalty, on which an arrestee’s decision to refuse a chemical test relies, and then later convict the arrestee of a charge that carries a greater penalty. Therefore, a due process issue was raised when defendant was convicted of a felony after being erroneously advised, through an out-of-date form, as to the criteria for determining if the refusal constituted a felony rather than a misdemeanor. Olson v. State, 260 P.3d 1056 (Alaska 2011).

Knowing consumption of alcohol sufficient to establish mens rea. —

AS 28.35.030 does not unconstitutionally allow a person to be convicted without any proof of mens rea with respect to the circumstance of driving while impaired or with a blood alcohol level above the legal limit, because proof that defendant was legally intoxicated and that he knowingly consumed alcohol and drove was sufficient to establish that defendant was negligent with respect to the circumstance that he was too impaired to legally drive. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

No duty to advise of right to refuse breathalyzer examination. —

There is no due process requirement that a person arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor be advised of the right to refuse to submit to a breathalyzer examination. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983), cert. denied, 469 U.S. 1017, 105 S. Ct. 430, 83 L. Ed. 2d 357 (1984), and Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

Blood alcohol test not more intrusive. —

For due process and search and seizure analysis, a blood test is not viewed as materially more intrusive than a breath test. The search and seizure provisions of the federal and state constitutions are not offended by a statute that allows the police to take a blood sample from an arrested motorist where the motorist has injured or killed another person without requiring the police to seek a breath sample first. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Right to independent testing of intoximeter result. —

Motorist was denied due process and his breath test results should have been suppressed, where his minimal ability to speak and understand English prevented him from understanding the arresting officer’s explanation of his right to obtain independent testing of the intoximeter result. Ahtuangaruak v. State, 820 P.2d 310 (Alaska Ct. App. 1991).

Waiver of right to independent chemical test. —

Defendant validly waived the right to an independent chemical test of defendant's breath test, because, even though unbeknownst to defendant and the police officer who administered the test, the breath test device had produced an error code related to one of its quality assurance mechanisms, defendant had a basic understanding of the right to an independent chemical test before declining the test. Botson v. Municipality of Anchorage, 367 P.3d 17 (Alaska 2016).

Notice requirement for second-degree unlawful contact. —

Reversal of defendant's conviction for second-degree unlawful contact was appropriate because, before the State of Alaska could lawfully impose a criminal penalty on defendant for telephoning defendant's spouse following defendant's arrest for domestic assault, the State was required (at a minimum) to prove that defendant was told that it was unlawful to contact the victim. Moran v. State, 380 P.3d 92 (Alaska Ct. App. 2016).

Right to verify intoximeter test results. —

Due process under the Alaska Constitution requires that a person arrested for driving while intoxicated be given a reasonable opportunity to verify the police administered intoximeter test result. Gundersen v. Municipality of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988), aff'd, 792 P.2d 673 (Alaska 1990).

City police department did not act arbitrarily or unreasonably in substituting the offer of a blood test for its previous policy of retaining breath samples in cases involving suspected intoxicated drivers. Swanson v. City & Borough of Juneau, 784 P.2d 678 (Alaska Ct. App. 1989).

AS 28.35.030 does not violate due process by creating impermissible presumptions that a motorist was at least as intoxicated at the time of driving as at the time of a chemical test administered within four hours of driving, because defendant could attack the accuracy of the chemical test or show that alcohol was consumed after driving. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

DWI margin of error. —

Failure to apply the inherent margin of error of a particular testing device in favor of the person subject to a DWI license revocation violates due process of law as guaranteed by the Alaska Constitution. Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993).

Booking of DWI suspects on audiotape. —

City police department’s policy of recording the booking of DWI suspects on audiotape rather than videotape was neither arbitrary nor unreasonable, and did not violate defendant’s right to due process. Swanson v. City & Borough of Juneau, 784 P.2d 678 (Alaska Ct. App. 1989).

Denial of right to analyze components of breathalyzer machine. —

Where defendant was charged with operating a motor vehicle while intoxicated, denial of the right to make an analysis of some of the components of the breathalyzer machine, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Failure to present to grand jury defendant’s breathalyzer reading. —

In a prosecution for rape, the failure of the prosecutor to present to the grand jury defendant’s .31 breathalyzer reading did not violate due process since, first, defendant drank an unknown quantity of whiskey between the commission of the rape and the administration of the breathalyzer test and thus the .31 reading was not probative of defendant’s state of intoxication at the time the rape occurred; and, second, the .31 result could not have been presented to the grand jury in isolation without creating a misimpression in defendant’s favor. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Preservation of breath sample. —

Municipality’s failure to preserve breath sample at time of arrest for later independent analysis violated defendant’s due process rights to confront and cross-examine evidence against him. Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska Ct. App. 1982); Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982).

The state’s failure to preserve a videotape of field sobriety tests taken one hour after arrest violates the due process rights of an accused at an administrative license revocation hearing where the accused is entitled to challenge whether the arresting officer had reasonable grounds at the time of arrest to believe that the suspect was driving while intoxicated. Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989).

Admissibility of blood test results. —

Where blood sample was taken by and was in possession of hospital where defendant sought treatment following car accident, and where on the facts of the case, both defendant and state had opportunity to preserve the sample, trial court did not err in ruling that the blood test results were admissible even though the state had not sought preservation of the blood sample. Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983).

6.Drugs

Classification of marijuana as a dangerous drug is not so arbitrary that it denies to persons possessing the drug due process of law. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Although there is insufficient justification for the state to intrude into the citizen’s right to privacy by its prohibition of the possession of marijuana in the home by an adult for personal consumption, the need for control of drivers under the influence of marijuana, and the existing doubts as to the safety of marijuana, demonstrate a sufficient justification for the prohibition found in former AS 17.12.010 (see now AS 11.71.030 ) as an exercise of the state’s police power for the public welfare. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Application of the marijuana law does not result in invidious discrimination against young persons. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Cocaine is not unconstitutionally classified as a narcotic drug by Alaska statute. Johnson v. State, 577 P.2d 230 (Alaska 1978).

The classification of cocaine with narcotics is not violative of equal protection or due process. State v. Erickson, 574 P.2d 1 (Alaska 1978).

When viewed from the overall legislative purpose of preventing the use of a drug harmful to the health and welfare of society, the classification of cocaine as a narcotic drug is not so irrational or arbitrary as to violate due process. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Cocaine offenses are not included in the prohibitions of AS 17.12 so that questions of prosecutorial discretion to charge cocaine offenses under either AS 17.10 or 17.12 need not be addressed. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Since cocaine is specifically designated in former AS 17.10 [now see AS 11.71 and AS 17.30], the legislature, in the absence of naming it in former AS 17.12, did not intend it to come under the terms of the latter statute. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Cocaine is specifically regulated by name in former AS 17.10 [now see AS 11.71 and AS 17.30], and an indictment for its possession or sale under former AS 17.12 would be impermissible unless cocaine were designated by name under the regulations authorized by that statute. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Police activity to ascertain involvement in drug activity. —

This section did not prohibit police activity involving an investigation in which defendant was contacted to ascertain if he was involved in ongoing drug activity. Abdullah v. State, 816 P.2d 1386 (Alaska Ct. App. 1991).

Bringing charge under more specific statute upheld. —

There was no equal protection or due process violation in charging defendant with delivery on the basis of evidence of an attempt to deliver since the more specific statute on delivery of cocaine controls over the general attempt statute and therefore only one punishment applied. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

7.Evidence

Evidence to which due process requirement applies. —

The due process requirement applies to all evidence which might have led the jury to entertain a reasonable doubt about defendant’s guilt and this test is to be applied generously to the accused where there is “substantial room for doubt” as to what effect disclosure might have had. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Because defendant’s proposed hearsay testimony failed to meet the criteria for admission under the residual hearsay exception, Alaska R. Evid. 804(b)(5), the evidence was inadmissible regardless of defendant’s due process right to present a defense that someone else could have committed the crime; defendant’s right did not make the hearsay rules irrelevant. Cleveland v. State, 91 P.3d 965 (Alaska Ct. App. 2004).

Due process requirements in consideration of post-conviction DNA evidentiary claims. —

Due process clause of the Alaska Constitution may require some avenue of relief where a constitutional violation could have resulted in the conviction of one who is innocent. Even though defendant’s claim of innocence is apparently barred by AS 12.72.020(b)(2) , it can be argued that the due process clause requires disregard of the wording of the statute and allows defendant to pursue his claim, as long as there is some chance that he could prove himself innocent by clear and convincing evidence. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Defendant who seeks post-conviction DNA testing must, at a minimum, meet the three-part test endorsed by the state courts; that is, the defendant must show that the conviction rested primarily on eyewitness identification evidence, that there was a demonstrable doubt concerning the defendant’s identification as the perpetrator, and that scientific testing would likely be conclusive on the issue. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

For discussion of due process considerations which would require disregarding of statutory limitations, where defendant has satisfied requirements for post-conviction DNA testing, but his claim is barred by AS 12.72.020 , see Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Evidence of defendant’s character for violence. —

The provision of Rule 404(a)(1), Rules of Evidence, allowing evidence of defendant’s character for violence to rebut his claim that the victim was the initial aggressor does not violate due process. Allen v. State, 945 P.2d 1233 (Alaska Ct. App. 1997).

Exclusion in favor of admissible, less prejudicial evidence. —

In a sexual assault case, the court properly excluded evidence of an alleged phone call where the victim purported to have sex with another man because defendant was allowed to question the victim about phone calls generally, providing defendant the opportunity to explore the dynamics of their relationship; the purposes that defendant asserted for introducing the specifics of the phone calls, including a demonstration of the “game playing” and “back and forth” nature of the relationship, were served by other admissible and less prejudicial evidence. Douglas v. State, 151 P.3d 495 (Alaska Ct. App. 2006).

Destruction of polaroid photographs did not violate defendant’s due process rights, where preservation and introduction of the photographs, which were of the scene of abandonment of stolen property, would not have led the jury to entertain a reasonable doubt about defendant’s guilt. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Failure to record field interrogation. —

Due process principles did not require an officer to interrupt an arrest and search in order to activate his recorder and capture a field interrogation, even though there was a disagreement about what happened. Defendant’s statement therefore should have been admitted. State v. Amend, 250 P.3d 541 (Alaska Ct. App. 2011).

Duty of prosecution to disclose exculpatory material. —

See Nicholson v. State, 570 P.2d 1058 (Alaska 1977).

The prosecutor did not violate his duty to present exculpatory evidence to the grand jury, where there was no separate exculpatory evidence, and the prosecutor was not shown to have known that the questioned evidence presented to the grand jury was false. Keith v. State, 612 P.2d 977 (Alaska 1980).

Failure of prosecutor to present to grand jury witness’s description of the occupant of a car he had observed on the morning of the murder did not violate the duty imposed by Cr. R. 6(q) to disclose exculpatory evidence to the grand jury and, therefore, would not have violated any constitutionally imposed duty of disclosure. Frink v. State, 597 P.2d 154 (Alaska 1979).

Defendant is entitled to have access to all relevant evidence in the possession of the state in order that he be afforded his right to a fair trial. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Denial of access to impeachment evidence. —

Denial of defendant’s request for in camera review of the juvenile file of a prosecution witness for purposes of defendant’s impeachment of the witness at sentencing did not violate his due process rights. Cockerham v. State, 933 P.2d 537 (Alaska 1997).

Probative value held outweighed by considerations of prejudice. —

In defendant’s trial for second-degree murder for killing a child who was in defendant’s care, defendant was not improperly denied the opportunity to present evidence that the child’s mother had a short temper when the small probative value of the evidence was outweighed by considerations of prejudice under Alaska R. Evid. 403. Defendant’s right to due process was not infringed when the trial judge properly applied R. 403 to exclude the evidence. Edwards v. State, 158 P.3d 847 (Alaska Ct. App. 2007).

Duty of prosecution to disclose relevant information to the defense. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

The due process clauses of the federal and state constitutions require that a prosecutor disclose information reasonably bearing on the credibility and bias of witnesses. Carman v. State, 604 P.2d 1076 (Alaska 1979).

If the prosecutor in a criminal case has not violated the duty imposed in Cr. R. 6 to present exculpatory evidence, then the prosecutor has not violated any constitutionally-imposed duty of disclosure. Preston v. State, 615 P.2d 594 (Alaska 1980).

Failure to disclose statements of potential witnesses. —

Where, although there was no pretrial request of record, during the trial an objection was raised by the defense counsel that he had not been supplied with a copy of the statements made to the prosecutor by potential witnesses and during the discussion of the failure to disclose the statement of the witness then testifying, defense counsel made a specific request for the statements or summaries of the statements of “potential witnesses,” and this information was not disclosed, a new trial was required by due process since “the suppressed evidence might have affected the outcome of the trial.” Nicholson v. State, 570 P.2d 1058 (Alaska 1977).

Or existence of reward. —

The state did not fulfill its responsibility to disclose information reasonably bearing on the credibility and bias of witnesses where, in a prosecution for armed robbery and first-degree murder, it did not disclose to defense counsel the existence of a reward, the fact that a witness had been told early on that he was a potential recipient of it, the fact that the witness had requested money when he first approached the police, and the fact that the witness was paid money after he gave the initial statement. Carman v. State, 604 P.2d 1076 (Alaska 1979).

Hypnotically adduced evidence. —

Defendants are deprived of their constitutional right of confrontation under the Alaska Constitution when hypnotically adduced evidence is introduced. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Witnesses who have been previously hypnotized are permitted to testify only to facts which they related prior to hypnosis. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Evidence of similar crime properly excluded. —

Trial court did not violate defendant’s due process right to present a defense to a charge of murder by preventing defendant from offering evidence that another purportedly similar shooting took place in the same neighborhood one month earlier. There were significant differences between the two incidents, particularly in that the earlier shooting was apparently a drug-related robbery. Rogers v. State, 280 P.3d 582 (Alaska Ct. App. 2012).

Failure to preserve evidence. —

Failure to preserve evidence violates one’s constitutional right to due process only if the evidence might have led the jury to entertain a reasonable doubt about the defendant’s guilt. Hatfield v. State, 663 P.2d 987 (Alaska Ct. App. 1983).

Defendant’s right to due process was not violated by the failure to preserve certain physical evidence where he never made a request for disclosure and the unpreserved evidence did not create a reasonable doubt as to defendant’s guilt that did not otherwise exist. Maloney v. State, 667 P.2d 1258 (Alaska Ct. App. 1983).

Physical items from which fingerprints taken not available. —

State’s failure to preserve and make available to defendant physical items from which fingerprints were taken did not violate the state’s affirmative duty to disclose potentially favorable evidence to the defense. Wyrick v. State, 590 P.2d 46 (Alaska 1979).

Destruction of evidence. —

In a prosecution for burglary not in a dwelling, destruction of a piece of cardboard that allegedly was marked with a bootprint did not amount to a violation of due process of law where there was uncontradicted testimony that the bootprint had dried and was no longer visible, and there was other evidence of greater convincing force connecting defendants to the commission of the crime. Linden v. State, 598 P.2d 960 (Alaska 1979).

Although one of the first police officers to arrive at the scene of the shooting took possession of defendant’s shotgun and handled the weapon before it was sent for analysis to a fingerprint expert, and upon examination of the gun, the fingerprint expert found only the officer’s prints, near the end of the barrel, there was no failure of due process by the state’s alleged destruction of exculpatory evidence. Adkinson v. State, 611 P.2d 528 (Alaska), cert. denied, 449 U.S. 876, 101 S. Ct. 219, 66 L. Ed. 2d 97 (U.S. 1980).

Where codefendant’s taped confession was destroyed after transcription, and was not used at trial except that the prosecution was permitted to establish that the statement had been made and the codefendant would sign it as accurate based on his observations and intent on the night the crime was committed, defendant was not deprived of his right to be confronted with witnesses against him, nor was he deprived of evidence that might have led the jury to entertain a reasonable doubt about his guilt. Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980).

Cross-examination. —

The due process clause requires no more than the opportunity for effective cross-examination. In re C.L.T., 597 P.2d 518 (Alaska 1979).

Defendants were not denied due process or equal protection where, in prosecution for possession of heroin, the judge allowed cross-examination of the defendants on whether one of the defendants worked as a prostitute and whether she used drugs and on the other defendant’s alleged illegal earnings, since a napkin containing heroin and police officers’ testimony about the events surrounding the arrests were the basis of defendants’ convictions. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Impeachment of a defendant by a prior conviction does not deny the defendant due process of law. Richardson v. State, 579 P.2d 1372 (Alaska 1978).

The use of a prior criminal conviction to impeach a defendant’s credibility does not deny him due process of law under either the Alaska Constitution or the United States Constitution. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Exclusion of co-defendant’s statement against penal interest did not violate defendant’s constitutional right to due process of law since co-defendant’s statement was not clearly corroborated. Garroutte v. State, 683 P.2d 262 (Alaska Ct. App. 1984).

Improper prosecutorial comments. —

Defendant’s interest in receiving a fair trial was not impaired by improper prosecutorial comments concerning the credibility of a codefendant. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

It was harmless error for prosecution to cross-examine defense expert on the absence of autopsy slides because defendant had remedies for the error at trial. While the prosecution was improperly allowed to imply that autopsy slides existed, defendant could have presented evidence of standard procedures when tissue samples are created as part of an autopsy. It was reasonable for the defense expert to conclude that, because he had not received any slides, none existed. Garner v. State, — P.3d — (Alaska Ct. App. Mar. 30, 2011) (memorandum decision).

Variance between indictment and jury instructions. —

Although the indictment used the language of shooting with the intent to kill “and” wound and instructions to the jury followed the statutory language of shooting with intent to kill “or” wound, defendant received adequate notice of the charge against him, there was no ambiguity as to the incident involved, and he was in a position to claim double jeopardy if again charged with the offense of shooting with intent to kill or wound arising out of this incident; due process was not violated, since, even assuming that six jurors believed defendant to have the intent of wounding and six the intent of killing, in either event, he would be guilty of the charge, and those finding the intent to kill would have necessarily found an intent to wound, as one cannot kill by shooting without wounding. Christie v. State, 580 P.2d 310 (Alaska 1978).

8.Instructions

All witnesses presumed to speak truth. —

The use of a jury instruction which states that witnesses are presumed to speak the truth is condemned, since it interferes with the province of the jury to determine credibility of witnesses, it seems to conflict with the presumption of innocence, and the instruction serves to raise doubt in the juror’s mind as to his role and adds a confusing factor to jury deliberations. Galauska v. State, 532 P.2d 1017 (Alaska 1975).

Cautionary instructions. —

The trial court does not abuse its discretion in giving a cautionary instruction when an immunized witness provides exculpatory testimony. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983).

It was unnecessary to resolve whether the trial court misinstructed on the requirement of jury unanimity as it related to a felony murder charge because the jury unanimously agreed that defendant was guilty of murder under other subsections of the second-degree murder statute. Lawson v. State, 264 P.3d 590 (Alaska Ct. App. 2011).

Erroneous instruction to jury on unanimity. —

Given that defendant’s right to have jurors all agree that defendant committed a single offense was protected by the Alaska Constitution’s due process clause, the court of appeals erroneously placed the burden of showing prejudice of a constitutional error on defendant rather than the State. Khan v. State, 278 P.3d 893 (Alaska 2012).

Given the defense that two different drivers had driven the car at different times, the trial court should have given a factual unanimity instruction, but the omission was harmless error because the jury found defendant guilty of driving in violation of his instructional permit under AS 28.15.051(a), and the jury unanimously found that defendant drove the car on the roadway and into the ditch. Cathey v. State, — P.3d — (Alaska Ct. App. July 19, 2017) (memorandum decision).

Charge to grand jury. —

Defendant’s equal protection and due process rights were not violated by a charge given to the grand jury, where the jury was left with the understanding that it should not return an indictment unless it was satisfied that the evidence presented, if unexplained or uncontradicted, established a probability of defendant’s guilt and would therefore warrant, i.e., justify, holding him for trial. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

9.Juries

Right to jury trial. —

The 14th amendment due process clause guarantees the right to jury trial in serious criminal prosecutions in the states. RLR v. State, 487 P.2d 27 (Alaska 1971).

Failure to provide accused with an impartial jury constitutes a denial of his constitutional right to due process of law. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Denial of use of juror affidavits to impeach verdict. —

Where an inmate attacked his guilty verdict in a petition for post-conviction relief, claiming that jurors formed and announced opinions and discussed the merits of the case before jury deliberations, relied on personal knowledge in the deliberations, and viewed the inmate’s decision not to testify and his wife’s absence as evidence of his guilt, the denial of his petition on the ground that under Alaska Evid. R. 606(b) the juror affidavits could not be relied on to support the petition did not violate the inmate’s due process rights. Larson v. State, 79 P.3d 650 (Alaska Ct. App. 2003).

Racial and cultural mix of grand jury. —

A grand jury is asked to determine only that a crime has been committed and that there is probable cause to believe that a particular person committed that crime. So long as no group of citizens has been systematically excluded from the grand jury selection process, a conviction on an indictment which is otherwise sufficient will be upheld. Peterson v. State, 562 P.2d 1350 (Alaska 1977).

Defendant’s conviction was upheld although the grand jury which returned the indictment did not contain the same racial and cultural mix as that of the situs of the alleged crime. Peterson v. State, 562 P.2d 1350 (Alaska 1977).

Grand jury proceedings cannot be turned into a mini-trial. The grand jury is an accusatorial body operating without a judicial officer to pass on the admissibility of evidence, and as such is charged with a determination of the probability of guilt. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Right to indictment by grand jury free of prosecutor instigated prejudice. —

Although no provision of the United States or Alaska constitutions specifically guarantees the right of an accused to be indicted by a grand jury free of prosecutor instigated prejudice, a strong historical basis exists for holding that the grand jury should operate to control abuses by the government and protect the interests of the accused. Coleman v. State, 553 P.2d 40 (Alaska 1976).

To overturn an indictment because of grand jury prejudice, a defendant should make a factual showing of prejudice. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983); Chief v. State, 718 P.2d 475 (Alaska Ct. App. 1986).

Actions of prosecuting attorney did not improperly influence grand jury. —

Coleman v. State, 553 P.2d 40 (Alaska 1976); Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982) (comments and elicitation of testimony that defendant had asserted his right to remain silent and to appointment of counsel).

Right to unbiased grand jury. —

Because the grand jury voted unanimously to indict a defendant, and because the defendant had, at most, established bias on the part of only one member of the panel, no deprivation of the defendant’s right to a fair and unbiased grand jury had been established. Patterson v. State, 747 P.2d 535 (Alaska Ct. App. 1987).

Hearsay before grand jury in cases of sexual assault on children. —

Permitting hearsay before a grand jury in cases of sexual assault on children does not deprive a defendant of due process or of the constitutional right to a grand jury review of the prosecution’s evidence before the return of an indictment. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Response to jury without notifying defendant or counsel. —

In a prosecution for rape the trial court erred in responding to a written communication from the jury during its deliberations requesting a playback of certain testimony without notifying defendant or either counsel of the communications and without allowing the parties to be present and to be heard on the matter. The testimony requested was that of the defendant and the prosecutrix and the judge’s response was to inform the jury that he could not allow them to hear “all of the testimony of a witness to be replayed” and to suggest that the jury narrow its request. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Replacement of juror by alternate in defendant’s absence. —

Defendant’s rights were not violated by the replacement of a juror by an alternate in the absence of defendant and his counsel, where the court had discretion to excuse the juror in light of the information it had received and defendant did not argue that the substitution of the alternate, whose qualifications had been approved, in any way affected the impartiality of the jury which tried him. Huff v. State, 598 P.2d 928 (Alaska 1979).

Purposeful and systematic exclusion must be shown to invalidate jury. —

Purposeful and systematic exclusion of an identifiable portion of the community must be shown to invalidate a jury in a criminal case. Kimble v. State, 539 P.2d 73 (Alaska 1975).

It must be shown that the jury selection method purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that the particular jury in question does not include a representative from all segments of the local population. Kimble v. State, 539 P.2d 73 (Alaska 1975).

Single offense. —

During closing arguments at defendant’s trial, the prosecutor erred by telling the jury that it could find defendant guilty of either of two distinct driving or operating incidents — driving to a friend’s house or starting a parked truck in front of the friend’s house — because defendant had the right to have jurors all agree that the defendant committed a single offense. Moreno v. State, 341 P.3d 1134 (Alaska 2015).

Failure to give unanimity instruction. —

In a prosecution of defendant for sexually abusing his girlfriend's three daughters, the trial court's error in failing to give a factual unanimity instruction was harmless beyond a reasonable doubt. Despite the absence of a factual unanimity instruction, it was likely that the jury actually reached unanimous agreement as to the specific act charged in each of the representative counts. Bedwell v. State, — P.3d — (Alaska Ct. App. May 16, 2018) (memorandum decision).

21- or 22-hour jury deliberation. —

In view of the total lack of evidence that jury fatigue or coercion was a factor in the verdict, the trial court’s exercise of discretion in allowing the jury to deliberate throughout a 21- or 22-hour-period was upheld. Kimble v. State, 539 P.2d 73 (Alaska 1975).

Jury communication to trial judge. —

Where the bailiff failed to deliver a jury deadlock note to the trial judge the judge was precluded from conducting proceedings on the record in defendant’s presence in violation of defendant’s right to be present at every stage of the trial. Wamser v. State, 652 P.2d 98 (Alaska 1982).

Because defendant did not give up the right to be represented by counsel, defendant’s limited co-counsel status—to cross-examine witnesses and to deliver additional closing argument—did not affect defendant’s constitutional right to have defendant’s attorney present at a hearing when substantive matters about the jury’s deadlock were discussed. Defense counsel’s decision to be out of contact for less than an hour, with the trial court’s tacit approval, was not an invitation to the court to hold proceedings without the attorney. Cunningham v. State, 408 P.3d 1238 (Alaska Ct. App. 2017).

10.Parole

Determination of parole eligibility. —

Where former AS 33.15.230(a)(1), which in 1973 provided that the term a prisoner had to serve before becoming eligible for parole could “not be more than one-third of the maximum sentence imposed by the court” and which in 1974 was amended to provide that any term thus designated “shall be at least one-third of the maximum sentence imposed by the court,” use of the amended version to determine parole eligibility for a crime committed in 1973 was sufficiently akin to the enforcement of an ex post facto law to amount to a denial of defendant’s right to due process of law under this section. Elstad v. State, 599 P.2d 137 (Alaska 1979).

Revocation of parole requires due process. —

Even though the revocation of parole is not a part of the criminal prosecution, the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Wortham v. State, 519 P.2d 797 (Alaska 1974).

Under both the United States and Alaska constitutions, a parolee may not be deprived of his limited liberty without due process of law. Paul v. State, 560 P.2d 754 (Alaska 1977).

Right to impartial fact finder in parole revocation proceedings. —

Due process includes the right to an impartial fact finder in parole revocation proceedings. Newell v. State, 620 P.2d 680 (Alaska 1980).

When a person sitting in on deliberations in a parole revocation hearing was the person who initially recommended revocation and whose reports and testimony form the bulk of the evidence supporting revocation, such a person was part of the prosecution, and their presence violated the parolee’s due process rights to an impartial fact finder. Newell v. State, 620 P.2d 680 (Alaska 1980).

Standard applied in parole revocation hearing. —

It was not error for a parole board to apply the preponderance of the evidence standard in a parole revocation hearing. Avery v. State, 616 P.2d 872 (Alaska 1980).

As well as revocation of probation. —

Like a parolee, a probationer may not be deprived of his limited liberty without due process of law. Paul v. State, 560 P.2d 754 (Alaska 1977).

There is no difference between parole and probation revocations as regards due process requirements. Avery v. State, 616 P.2d 872 (Alaska 1980).

There is no difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Paul v. State, 560 P.2d 754 (Alaska 1977).

A parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision. Wortham v. State, 519 P.2d 797 (Alaska 1974).

The preliminary hearing is necessary because due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Wortham v. State, 519 P.2d 797 (Alaska 1974).

What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior. Wortham v. State, 519 P.2d 797 (Alaska 1974); Paul v. State, 560 P.2d 754 (Alaska 1977).

Hearing required at place of arrest. —

Due process requires a hearing for an alleged parole violator at the place of his arrest. Wortham v. State, 519 P.2d 797 (Alaska 1974).

Which may be outside the state. —

Wortham v. State, 519 P.2d 797 (Alaska 1974).

Revocation of parole prior to criminal trial on same charges. —

Where a parolee is faced with revocation of parole prior to a criminal trial on the same charges, in the interests of fairness, the parolee should not be forced to choose between remaining mute at the revocation proceeding, thereby surrendering his right to present a defense, or testifying at the revocation hearing and incurring the possibility of incriminating himself. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and a criminal trial based upon the same conduct, upon timely objection any evidence or testimony presented by the parolee at a revocation hearing is inadmissible by the state in subsequent criminal proceedings. This exclusionary rule applies equally to the fruits of the parolee’s prior revocation hearing, in order to remove completely any illegitimate incentive to schedule revocation hearings in advance of trial. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and criminal trial based on the same conduct, the parolee must be advised prior to revocation proceedings that any evidence or testimony offered by him at the revocation proceedings may not be admitted against him at a subsequent trial on the underlying offense. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Notice of alleged violation of probation. —

Failure to notify a probationer, prior to the revocation hearing, of an allegation that he has violated a condition of probation is a denial of procedural due process. Martin v. State, 517 P.2d 1399 (Alaska 1974).

There was no error in conducting the probation revocation hearing some six months after the violation of the conditions of probation. Paul v. State, 560 P.2d 754 (Alaska 1977).

No credit against suspended sentence for probation. —

Defendant was not entitled to have the period he served on probation credited against his original suspended sentence. Paul v. State, 560 P.2d 754 (Alaska 1977).

Upon a violation occurring within the specified period of probation, the court is empowered to order execution of the sentence up to but not beyond the maximum period originally specified. Paul v. State, 560 P.2d 754 (Alaska 1977).

The former Parole Administration Act violated section. —

Former AS 33.15.190, which made parolees subject to the disabilities imposed on prisoners by AS 11.05.070 [now AS 33.30.310] insofar as it suspended, in conjunction with AS 11.05.070 , the access of parolees to civil courts, violated the due process clauses of the Alaska and United States constitutions. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

AS 11.05.070 [now AS 33.30.310] and former AS 33.15.190 (see now AS 33.16) combined to deny a parolee the right to initiate civil suit; such denial of access to the civil courts was a violation of due process and equal protection provisions of the Alaska and United States constitutions. State v. McCracken, 520 P.2d 787 (Alaska 1973).

A parolee denied access to the judicial process by reason of his custodial status is thereby condemned to suffer a grievous loss of property rights protected by the due process provisions of this section and of the 14th amendment of the United States Constitution.Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

While tolling of the statute of limitations during disability prevents the baldest of takings; nevertheless, the disability robs the parolee of the opportunity to be heard “at a meaningful time and in a meaningful manner.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Parole conditions, 120-day notice reasonable. —

One hundred twenty days’ advance notice of proposed parole conditions is reasonable, and where defendant received 120 days’ advance notice there was no due process violation concerning the length of the notice. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions, proper response period. —

Where inmate filed his opposition within four days of receiving notice of the proposed conditions, did not ask for additional time to submit more material, and did not identify any manner in which he was prejudiced by the ten-day period, his claim that his due process rights were violated by an unduly short response period was correctly rejected. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions, enumeration of reasons unnecessary. —

Although a statement of reasons for each proposed condition and a statement of the evidence to be relied upon may help an inmate formulate a written response in some cases, it is not generally necessary to satisfy due process requirements. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions, inmate’s submission of written response. —

22 AAC 20.270(b) of the Administrative Code permits an inmate to submit written material, including the statements of others, in an attempt to correct errors in the inmate’s records, respond to concerns implicit in the notice of proposed conditions and otherwise support the inmate’s position. These procedures afford the inmate an opportunity to be heard and to represent the inmate’s interests and that is all that due process requires. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Parole conditions properly imposed. —

The procedures employed to impose special parole conditions on inmate satisfied due process requirements where: 1) inmate was given notice of the proposed conditions; 2) he had an opportunity to make his objections known and to correct any mistaken facts on which they were based; and 3) the board member who imposed the conditions explained the reasons for rejecting inmate’s objections. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

11.Pre-trial

Pre-accusation delay. —

Both the Alaska and federal constitutional guarantees of due process of law serve to protect a defendant against the hazards of pre-accusation delay. Marks v. State, 496 P.2d 66 (Alaska 1972).

A claim of pre-accusation delay must sound in terms of deprivation of due process of law. Coffey v. State, 585 P.2d 514 (Alaska 1978); Alexander v. State, 611 P.2d 469 (Alaska 1980).

A claim of pre-accusation delay must sound in terms of deprivation of due process of law under the 14th amendment to the United States Constitution and this section. The United States Constitution’s 6th amendment does not afford speedy trial protection until the commencement of formal proceedings. Similarly, the Alaska constitutional right to speedy trial, embodied in art. I, § 11, does not attach prior to formal accusation. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Two factors have been considered relevant in deciding whether substantial delay in accusation constitutes a denial of federal due process: The reasonableness of the delay and the probable prejudice accruing from the delay. In order to assess a claim of due process deprivation, the governmental interest in postponing accusation must be weighed against the defendant’s interest in early notice of the charges against him. In sum, both the absence of a valid reason for pre-accusation delay and the fact of prejudice must be established in order to support a due process claim. Marks v. State, 496 P.2d 66 (Alaska 1972); Dixon v. State, 605 P.2d 882 (Alaska 1980).

While the supreme court has recognized that there may be reason to dismiss criminal charges because of prejudice suffered by a defendant because of pre-indictment delay, such a decision must be based on a consideration of several factors. The reason for delay, the prejudice to defendant, and the governmental interest in postponing accusation must be evaluated to assess a claim of violation of due process with respect to events occurring prior to indictment. P.H. v. State, 504 P.2d 837 (Alaska 1972).

In order to show pre-accusation delay warranting a dismissal, a defendant must show (1) the absence of valid reasons for such delay and (2) the fact that the defendant was prejudiced by the delay. Yarbor v. State, 546 P.2d 564 (Alaska 1976); Coffey v. State, 585 P.2d 514 (Alaska 1978); Prenesti v. State, 594 P.2d 63 (Alaska 1979); Alexander v. State, 611 P.2d 469 (Alaska 1980); Burke v. State, 624 P.2d 1240 (Alaska 1980).

Some delay between offense and formal charge is clearly justified in cases involving drug undercover agents. McKay v. State, 489 P.2d 145 (Alaska 1971).

A preindictment delay by the prosecution to gather potentially exculpatory evidence is clearly not an unreasonable delay. Burke v. State, 624 P.2d 1240 (Alaska 1980).

Defendant’s generalized claim of possibly lost witnesses and failed memories failed to meet the actual prejudice requirement and thus did not support a finding that his right to due process was violated by a pre-accusation delay. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

The defendant bears the burden of showing that the delay was unreasonable and that he was prejudiced thereby. Coffey v. State, 585 P.2d 514 (Alaska 1978); Dixon v. State, 605 P.2d 882 (Alaska 1980).

The burden of proving prejudice flowing from the pre-accusation delay lies with the defendant. Prenesti v. State, 594 P.2d 63 (Alaska 1979).

That the ultimate burden of proof is on the defendant does not mean that the state is relieved of the burden of coming forward with reasons for the delay, matters normally within the exclusive knowledge of the state. Rather, the defendant must show that the reasons so advanced do not justify the delay. Coffey v. State, 585 P.2d 514 (Alaska 1978); Dixon v. State, 605 P.2d 882 (Alaska 1980); Burke v. State, 624 P.2d 1240 (Alaska 1980).

The burden of proof is on the defendant to show the absence of a valid reason for the delay and the fact of prejudice, though the state has the burden, once the issue is raised, to come forward with reasons for the delay. When reasons are advanced, the defendant must show that they do not justify the delay. Alexander v. State, 611 P.2d 469 (Alaska 1980).

Even if there is no reason advanced for the delay, the defendant must still show actual and substantial prejudice in order to prevail. Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988).

In a dog-bite case, defendant’s equal protection rights were not violated despite assertions that she had been treated differently than other owners of biting dogs; she offered no evidence to support an inference that the treatment was motivated by her racial heritage. Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289 (Alaska Ct. App. 2004).

Five-month delay. —

In a prosecution for rape, a delay of nearly five months between the occurrence of the event in dispute and the return of the indictment did not prejudice the accused’s defense so as to effectively deny him due process of law. Dixon v. State, 605 P.2d 882 (Alaska 1980).

A five-month pre-indictment delay in a statutory rape prosecution is reasonable in light of the investigation undertaken by the police and an understandable reluctance to rush this type of case before the grand jury by the district attorney, and given the minimal possible prejudice which could have resulted from the delay. Burke v. State, 624 P.2d 1240 (Alaska 1980).

A seven-month interval from the alleged drug sale until arrest was an unreasonable delay denying accused due process. McKay v. State, 489 P.2d 145 (Alaska 1971).

Eight-month delay. —

Dismissal of the criminal proceedings under former AS 17.12.010 (see now AS 11.71) was constitutionally mandated where eight months had elapsed between the occurrence of the alleged sale and the filing of the indictment. Marks v. State, 496 P.2d 66 (Alaska 1972).

Although an eight-month delay in filing formal charges against defendant was unreasonable, defendant was not sufficiently prejudiced by the delay to warrant dismissal of the charges. Prenesti v. State, 594 P.2d 63 (Alaska 1979).

Three-year delay between the conduct and the indictment did not violate due process where, although the bench warrant for his arrest was never entered into the national computer systems, defendant was incarcerated during the period in various states under a name different from the one on the warrant, and therefore the police would not necessarily have known where he was. Lipscomb v. State, 700 P.2d 1298 (Alaska Ct. App. 1985).

Ten-year delay between alleged offenses and defendant’s indictment was reasonable, and dismissal of charges against defendant was error, where defendant fled the state after being interviewed and was not found until he returned to the state 10 years later, and the child victim had been institutionalized for a significant period of time after the alleged sexual abuse. State v. Gonzales, 156 P.3d 407 (Alaska 2007).

Delay of arrest. —

Action by undercover officer in delaying arrest of defendant for assignation for the purpose of prostitution until after sexual contact between them had been initiated, while questionable, did not violate defendant’s due process right to fundamental fairness. Municipality of Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct. App. 1982).

Defendant’s absence from a pretrial conference held during a criminal trial did not rise to the level of plain error. Dolchok v. State, 639 P.2d 277 (Alaska 1982).

Absence from hearing. —

Defendant’s absence from hearing was not reversible error because nothing of significance happened at the omnibus hearing, even though defendant would have been alerted to the fact that a particular judge would be trying the case, and that his counsel was contemplating stipulating to a trial date more than 120 days from the date of his arrest. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

Ex parte hearing where witness claims privilege. —

Notwithstanding a criminal defendant’s right to be present “at every stage of the trial” under Criminal Rule 38(a), and the defendant’s right to due process, a trial judge has the authority to hear ex parte a witness’s explanation of his basis for asserting a privilege not to testify. Taylor v. State, 977 P.2d 123 (Alaska Ct. App. 1999).

Requirements for valid guilty plea. —

An incantation of specific constitutional rights is not required in order for a plea of guilty to be valid under the due process clause. What matters is whether from the totality of circumstances surrounding the plea it can be determined that the plea was voluntarily and intelligently made. Morgan v. State, 582 P.2d 1017 (Alaska 1978).

The trial court must inform a defendant of the essential elements of the offense with which he is charged before accepting a guilty plea. Else v. State, 555 P.2d 1210 (Alaska 1976).

And court inquiry must be more exacting when defendant pro se. —

A trial court should make a more exacting inquiry to assure a defendant’s understanding of the charge when he seeks to enter a guilty plea pro se than is required when he is represented by counsel. Routine questions on the subject of understanding are insufficient, and a single response by a pro se defendant that he “understands” a charge is inadequate assurance or basis for believing that he does. Else v. State, 555 P.2d 1210 (Alaska 1976).

What “essential elements” include. —

For the purpose of instructing a nonrepresented defendant, “essential elements” include those requirements not contained in the wording of the statute but created by judicial construction. Else v. State, 555 P.2d 1210 (Alaska 1976).

Nonrepresented defendant’s guilty plea to the charge of assault with a dangerous weapon was invalid because he was not informed by the court or the prosecutor of an essential element of the offense, specifically that his weapon must be loaded, which requirement is not contained in the statute defining assault with a dangerous weapon but has been added by judicial interpretation. Therefore, his plea was involuntary since he did not receive real notice of the true nature of the charge against him, and his judgment of conviction was entered without due process of law. Else v. State, 555 P.2d 1210 (Alaska 1976).

12.Prisoners

An inmate is a “person” for purposes of the 14th amendment. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

The distinction between prisoners in institutions and free citizens on the labor market is not suspect. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Prisoners’ rights subject to certain restrictions. —

That prisoners retain rights under the due process clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Action against corrections officers. —

Inmate could not bring a Bivens-type tort claim for excessive force in a “take-down” and for failure to supervise officers because he had the alternative remedy of a federal claim under 42 U.S.C.S. § 1983 and the Fourth and Fifth Amendments. The fact that the State would be immune in the § 1983 claim did not preclude it being an alternative remedy. State v. Heisey, 271 P.3d 1082 (Alaska 2012).

Decisions of prison authorities relating to classification of prisoners are completely administrative matters regarding which the inmate has no due process rights beyond the expectation of fair and impartial allocation of the resources of the prison system to its charges. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Inmates not entitled to minimum wage. —

Neither the rehabilitation directive of the Alaska Constitution nor its due process clause requires the holding that inmates are entitled to a minimum wage. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Rights accorded inmate in disciplinary proceedings. —

See McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Alaskan prisoners are entitled, under the Alaska Constitution, to all due process rights enunciated in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (U.S. 1974). McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Wolff v. McDonnell , 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), which enumerated certain due process requirements when major prison disciplinary proceedings are instituted against a state prisoner, did not delineate the full reach of due process rights which must be accorded prison inmates under the Constitution of Alaska. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

In Wolff v. McDonnell , 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the United States supreme court held that when major prison disciplinary proceedings are instituted against a state prisoner, due process requires giving the inmate at least 24-hour advance written notice of the alleged violation; supplying the inmate with a written statement by the factfinders as to the evidence relied on and the reasons for the disciplinary action; allowing the inmate facing disciplinary action to call witnesses and to present documentary evidence in his behalf when to do so will not be unduly hazardous to institutional safety or correctional goals; and allowing an illiterate inmate, or an inmate facing a complex issue, to have assistance in marshalling and presenting evidence and in comprehending the issues of the case. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Alaska’s constitution requires greater due process protections than the United States Constitution in the following respects: A prisoner has the right to counsel in conjunction with major disciplinary proceedings when felony prosecution may result; the right to call witnesses and produce documentary evidence in his favor (subject to the limitations discussed previously); the right to confront and cross-examine witnesses; and the right to have the entire hearing recorded for purposes of administrative appeal and potential further appeal to the superior court. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

The Alaska Constitution affords an inmate of Alaska’s penal system no greater protection than the United States Constitution in the following respects: a disciplinary proceeding is not a criminal proceeding, thus the inmate has no automatic right of appeal to the courts of Alaska; the standard of proof, in disciplinary hearings, of violation of prison rules is not “beyond a reasonable doubt”; and, while the inmate is entitled to a fair and impartial hearing, it is not constitutionally impermissible for the hearing to be conducted by employees of the prison system. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Prisoners who are subjected to minor disciplinary action by prison authorities are entitled to no more due process than a right to be heard by fair and impartial officials of the prison system whose disposition of the matter, coupled with the reasons for the decision, is made part of a complete record. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

There are limitations on the right of Alaska prisoners to call witnesses and to produce documentary evidence in their favor, and the right to confront and cross-examine witnesses. McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

Because single hearing officers were not presumed under Alaska case law to be biased in prison disciplinary proceedings, and because defendant offered no specific allegations of bias or an explanation of why a high-moderate infraction of possession of tobacco in violation of AS 33.30.015 and 22 AAC 05.400(c)(7) required adjudication by a committee instead of a single hearing officer, he did not show a violation of his Alaska constitutional right to an impartial factfinder under Alaska Const. art. I, § 7 as was required for a reversal under AS 33.30.295 . Brandon v. Dep't of Corrections, 73 P.3d 1230 (Alaska 2003).

A prisoner has the right to challenge the disciplinary procedures of the department of corrections by means of an appeal to the superior court. The payment of filing fees is required to limit frivolous appeals, however, a prisoner cannot be denied access to the superior court due to inability to pay the filing fee. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Prisoner raised a liberty interest in challenging punitive segregation, and he raised a due process issue in challenging the related disciplinary proceedings. He had a fundamental right to court access to challenge a department of corrections proceeding affecting his liberty interest. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

The superior court had no authority to require a prisoner to access his forced savings account to pay a filing fee; department of corrections policy prohibits using those funds to calculate or pay filing fees. Further, directing prisoners to apply for permanent fund dividends to pay fees is not appropriate; many prisoners have no right to a permanent fund dividend. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

AS 09.19.010 expressly provides the court the ability to grant an extension of time for paying the filing fee, and it is logical to conclude that this also encompasses the discretion to allow installment payments, but extensions and installment payments provide no relief for prisoners with no reasonably foreseeable income to make payment, and delay while installments are paid does not provide constitutionally adequate court access to prisoners without funds or income. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Right to court access. —

A prisoner alleged he was unconstitutionally deprived of judicial review of prison disciplinary decisions because AS 09.19.010 requires the prisoner to pay a minimimun filing fee calculated on the average balance or deposits in his inmate account over the past six months. The amount calculated for this prisoner required him to pay a fee far higher than his actual assets, and higher than he was likely to have within a reasonable time. As a matter of procedural due process, the prisoner was effectively denied his right to access to the courts by the terms of the statute. Barber v. State, Dep't of Corr., 314 P.3d 58 (Alaska 2013).

Right violated during prison disciplinary proceeding. —

Inmate’s due process right to confront and cross-examine adverse witnesses was violated during a disciplinary proceeding; the inmate had the right to confront the staff member who had the conversation with the inmate that formed the basis of the incident report’s charge and who should have written the report, as well as the staff member who wrote up the account of the incident. James v. State, 260 P.3d 1046 (Alaska 2011), overruled in part, Walker v. State, 421 P.3d 74 (Alaska 2018).

Disciplinary proceedings which threaten major deprivations of a prisoner’s limited liberty and those which do not distinguished. —

See McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

The administrative appeals provided by the division of corrections regulations are not constitutionally defective. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975); McGinnis v. Stevens, 570 P.2d 735 (Alaska 1977).

The test of a prisoner’s right to receive treatment for health problems outlined in Bowring v. Godwin , 551 F.2d 44 (4th Cir. 1977), is an appropriate one and its criteria have been adopted in determining questions as to the right of a prisoner to receive psychological or psychiatric care under the provisions of former AS 33.30.020 and 33.30.050 , which had provided that the commissioner is to establish and maintain prison facilities and provide medical services. Rust v. State, 582 P.2d 134 (Alaska 1978).

Pursuant to the provisions of former AS 33.30.020 and 33.30.050 , which had provided that the commission is to establish and administer prison facilities and provide medical services a prisoner in the custody of the division of corrections has the right to receive psychological or psychiatric treatment if a physician or other health care provider, exercising ordinary skill and care at the time of observation, concludes with reasonable medical certainty that the prisoner’s symptoms evidence a serious disease or injury, that such disease or injury is curable or may be substantially alleviated and that the potential for harm to the prisoner by reason of delay or denial of care could be substantial. Rust v. State, 582 P.2d 134 (Alaska 1978).

Incarceration of a person found guilty but mentally ill does not violate the due process or cruel and unusual punishment clauses of the Alaska Constitution. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Conditions of confinement complaint. —

Superior court erred in dismissing the prisoner’s administrative appeal from a final grievance decision by the Department of Corrections (DOC) without notice or opportunity for either the prisoner or DOC to be heard, which infringed on the prisoner’s right to due process. Bolden v. Dep't of Corr., — P.3d — (Alaska July 14, 2010) (memorandum decision).

Inmate’s rights violated. —

Failure of penitentiary disciplinary committee to allow prisoner to call official who supervised confiscatory search as a defense witness violated his due process rights under the Alaska Constitution. Brandon v. Dep't of Corr., 865 P.2d 87 (Alaska 1993).

Second petition for post-conviction relief. —

Under the due process clause of the Alaska Constitution, defendants must be allowed to pursue a second petition for post-conviction relief if they allege that they received ineffective assistance of counsel when they litigated their first petition. Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003).

13.Sentencing

Punishment for crime need not be strictly proportioned to the offense. Green v. State, 390 P.2d 433 (Alaska 1964); Stock v. State, 526 P.2d 3 (Alaska 1974).

Alcoholic beverage penalties. —

Statutory distinction in AS 04.16.200 between a misdemeanant and a felon based solely on the type and quantity of alcoholic beverages imported does not violate due process; the greater the volume of alcoholic beverages imported, the greater the potential for abuse, whether importation is for sale or personal use. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

Punishments violative of due process. —

Only those punishments which are cruel and unusual in the sense that they are inhuman and barbarous or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice, may be stricken as violating the due process clauses of the state and federal constitutions, and art. I, § 12, of the Alaska Constitution.Green v. State, 390 P.2d 433 (Alaska 1964); Stock v. State, 526 P.2d 3 (Alaska 1974).

Imposition of sentence by judge, not jury, upheld. —

When defendant was sentenced to a 99-year minimum mandatory sentence, the imposition of the sentence by a judge, not a jury, did not violate either the jury trial clause or the due process clause because this argument had already been rejected by the supreme court, and the appellate court had no authority to re-examine or second-guess the supreme court’s resolution of this point. Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007).

Enhanced sentences. —

Before a prior conviction for an ostensibly non-criminal infraction, such as a “civil forfeiture,” can properly be relied on as the sole basis for imposition of an enhanced mandatory minimum jail term, fundamental fairness under Alaska Const., art. I, § 7 requires the sentencing court to determine that the defendant was afforded the right to counsel in the prior case; an uncounseled conviction is simply too unreliable to be depended on for purposes of imposing a sentence of incarceration, whether that sentence is imposed directly or collaterally. Pananen v. State, 711 P.2d 528 (Alaska Ct. App. 1985).

Prior out-of-state convictions properly considered in sentencing. —

Montana court’s reliance on defendant’s failure to appear at his trials despite having been personally served with his trial notices and informed that he would be tried in absentia and without a jury if he did not appear for the trials, established a waiver of his right to be present at trial and satisfied Alaska’s concepts of due process; the convictions obtained in absentia could be used as prior convictions affecting disposition of defendant’s Alaska felony DWI charge. State v. Simpson, 95 P.3d 539 (Alaska Ct. App. 2004).

A minimum sentence of fifteen years for second degree murder was not in itself cruel or unusual or a denial of due process, and did not become such when matched against the one-year minimum sentence formerly implicit in that part of the former first degree murder statute which, prior to the 1964 amendment, prescribed an alternative penalty of imprisonment at hard labor for any term of years. Green v. State, 390 P.2d 433 (Alaska 1964).

Twenty-year minimum sentence for first-degree murder does not constitute cruel and unusual punishment in violation of § 12, art. I, of the state constitution, and U.S. Const., Amend. 8, nor does it deprive defendant of substantive due process and the equal protection of the laws in violation of U.S. Const., Amend. 14 and of the comparable provisions in the Alaska Constitution. Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

Penalizing the offense of guiding without a license as a felony under former law, with a maximum term of up to three years, did not amount to arbitrary and shockingly disproportionate punishment, although the former law provided for a minimum term of one year to serve since the one-year minimum sentence was not mandatory. Maeckle v. State, 792 P.2d 686 (Alaska Ct. App. 1990).

A more severe sentence may not be imposed after retrial for any reason. Shagloak v. State, 597 P.2d 142 (Alaska 1979).

Imposition of a more severe sentence after defendant’s trial following his change of plea from guilty to not guilty was a denial of due process of law under the Alaska Constitution. Shagloak v. State, 597 P.2d 142 (Alaska 1979).

Sentence based on conduct for which defendant acquitted. —

Double jeopardy and due process are not implicated when a person who has been acquitted of certain conduct is sentenced on the basis that the conduct occurred. The reason for this rests on the differing burdens of proof. In order to convict a defendant of an offense, the state must prove guilt beyond a reasonable doubt. In contrast, a trial court imposing sentence may rely on any information that is verified in the record. Brakes v. State, 796 P.2d 1368 (Alaska Ct. App. 1990).

Constitutionality of former AS 12.55.125(k)(2). —

Former AS 12.55.125(k)(2) [repealed 2005], interpreted to mean that, when a judge was sentencing a first felony offender for a class B or a class C felony, the defendant’s time to serve (i.e., the unsuspended portion of the defendant’s term of imprisonment) could equal, but could not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime, did not violate the due process rights of first felony offenders. Dayton v. State, 120 P.3d 1073 (Alaska Ct. App. 2005).

Sentence held constitutional. —

Where a trial court originally enhanced defendant’s sentence based on an aggravating factor which was held on appeal not to apply; on remand the trial court referred the case to the three-judge panel which then imposed a sentence which was less than defendant’s original sentence; and the three-judge panel’s sentence was based upon basically the same factors which the trial court had used to enhance defendant’s original sentence, then, although the sentence was greater than the presumptive term applicable to his offense, defendant’s sentence did not violate the prohibition against double jeopardy, did not violate his due process rights, and was not a product of prosecutorial or judicial vindictiveness. Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986).

Sentencing change constitutional where defendant notified. —

A defendant’s due process rights are not violated by a judge who initially imposes a concurrent sentence in the presence of the defendant and subsequently, realizing that he intended to impose a consecutive sentence, does so but not in the defendant’s presence, where the judge’s remarks before and during the pronouncement of sentence make it clear that he intends to impose a consecutive sentence, and the defendant is given notice of a change in his sentence. Merry v. State, 752 P.2d 472 (Alaska Ct. App. 1988).

Later-enacted statute’s applicability to set-aside convictions. —

A defendant who has satisfied his suspended imposition of sentence conditions and whose conviction was set aside by a final order entered before the Alaska Sex Offender Registration Act, AS 12.63.010 et seq., became specifically applicable to convictions that have been set aside has an enforceable procedural right in the set-aside order’s meaning and terms which the State may not alter or ignore without heeding the requirements of procedural fairness. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

G.Right to Counsel
1.Civil Proceedings

Right to be heard by counsel. —

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

There is a constitutional right to counsel in civil cases arising from the due process clause. Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144 (Alaska 1989).

Right to counsel in certain civil proceedings. —

The right to counsel in defense of criminal charges which may result in deprivation of liberty is well established, and the principles justifying appointment of counsel in criminal cases also apply to certain civil or quasi-civil proceedings. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Because of the possibility of a loss of liberty, due process of law requires the appointment of counsel in a civil contempt proceeding for non-support. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Right to counsel in proceedings to terminate parental rights. —

The due process clause of the Alaska Constitution guarantees indigent parents a right to the effective assistance of counsel in proceedings brought to terminate their parental rights. V.F. v. State, 666 P.2d 42 (Alaska 1983).

Due process requires that an indigent natural parent be appointed an attorney to assist him in demonstrating why his consent to the adoption of his child should not be rendered unnecessary. In re K.L.J., 813 P.2d 276 (Alaska 1991).

The court erred in not appointing an attorney to represent a disabled, indigent father when his ex-wife’s husband petitioned the court to waive the natural father’s consent and terminate his parental rights so that the ex-wife’s husband could adopt the daughter of the divorced couple because the Alaska Constitution mandates that the superior court appoint an attorney when an indigent parent’s right to consent to an adoption of his or her child may be waived under AS 25.23.050(a) . In re K.L.J., 813 P.2d 276 (Alaska 1991).

Appointment of counsel in paternity suits. —

In light of the fact that paternity suits, in effect, are brought by the state, the significance of the parent-child relationship involved and the peculiar problems presented in such a proceeding, due process requires the appointment of counsel for an indigent defendant. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

In a paternity case, the issues may take on an even greater complexity than those involved in a custody termination proceeding. This consideration underscores the need for counsel. The court may be required to assess testimony pertaining to sexual conduct which is labeled as a crime by an Alaska statute. Decisions pertaining to blood tests and the proper examination of witnesses on complex scientific issues may also be necessary. In addition to the obligation of support, rights of inheritance may be affected. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

An indirect outcome of a paternity suit could be a criminal charge. At a trial on such a charge, evidence introduced and admissions made without assistance of counsel in the paternity suit could play a significant role. Also, the support decree is enforceable by contempt proceedings which likewise could result in incarceration. In such contempt proceedings, the establishment of paternity and the amount of support payments would be res judicata. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

The analogy of a paternity suit to other cases in which the supreme court has held that a right to counsel exists is further strengthened by the fact that the proceeding is being prosecuted by an attorney general rather than private counsel. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Right to counsel where defendant is indigent. —

In order to meet due process and equal protection considerations, a defendant must be afforded the right to counsel appointed by the court in those instances where the defendant is indigent. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974).

Indigent in a contempt for nonsupport proceeding has a right to a court-appointed attorney. Although a nonsupport contempt proceeding is not normally considered to be “criminal action,” the possibility of incarceration is the same. Otton v. Zaborac, 525 P.2d 537 (Alaska 1974).

Right to counsel for indigent in private child custody proceeding. —

The due process clause of the state constitution guarantees the right of an indigent party to court-appointed counsel in a private child custody proceeding in which her spouse is represented by Alaska Legal Services Corporation. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Due process did not mandate court-appointed counsel for the father, an indigent parent, in a custody matter, where the opposing parent was represented by private counsel, as the private interests of the parents did not rise to an unconstitutional level since the assistance available to all self-represented parents was available to the father, who capably represented himself and impeached the mother's credibility. Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Discussion of state action which brings into play the due process clause in contempt proceedings for nonsupport. —

See Otton v. Zaborac, 525 P.2d 537 (Alaska 1974).

Presence of counsel during deliberations of Disciplinary Board. —

To assure both the fact and appearance of impartiality in the decisional function of the Disciplinary Board of the Alaska Bar Association, counsel associated with either the prosecution or defense should not be present during deliberations. In re Robson, 575 P.2d 771 (Alaska 1978).

The degree of counsel-client communication required by due process may not be the same in criminal proceedings and in proceedings to terminate parental rights. In re C.L.T., 597 P.2d 518 (Alaska 1979).

Right of counsel to attend examination of client. —

Plaintiff’s counsel in a civil case should have the right to attend a physical, or psychiatric, examination of his client. Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144 (Alaska 1989).

No right to court-appointed counsel. —

Where divorcing parents had considerable marital assets, and the husband could afford to pay for an attorney in custody proceedings without encumbering the family home, there was no right to a court-appointed counsel. Jordan v. Jordan, 983 P.2d 1258 (Alaska 1999).

2.Criminal Proceedings

A post-indictment lineup is a “critical stage” of the prosecution at which the accused was entitled to the aid of counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Requirement of counsel at pretrial photographic displays not required. —

See Kimble v. State, 539 P.2d 73 (Alaska 1975).

Presence of counsel at show-up. —

The presence of counsel at a show-up is not mandated if the circumstances call for an immediate identification as part of a prompt and purposeful investigation. Vessell v. State, 624 P.2d 275 (Alaska 1981).

Interceptions of attorney-client communications have long been held violative of due process of law and of the right to the effective assistance of counsel. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Sentencing is critical stage of proceedings against defendant. A criminal defendant, therefore, has the constitutional right to effective assistance of counsel, and the concomitant right to a reasonable period of time in which to prepare. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Counsel’s responsibilities at sentencing hearing. —

While the responsibilities of counsel at sentencing are not easily defined, counsel should at least be prepared to present to the court all the factors and circumstances necessary for a reasonably meaningful hearing. Obviously, counsel should have an opportunity to become familiar with all the reports serving as a foundation for the sentence in advance of the sentencing hearing. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

The denial of post-conviction right to counsel would be fundamentally unfair and violative of the due process clause of this section. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Right to counsel in post-conviction proceeding. —

Because an indigent defendant has a right to effective counsel under both Alaska Const. art. I, § 7 and AS 18.85.100(c) in a first application for post-conviction relief, that defendant must be given the opportunity to challenge the effectiveness of counsel in a second petition for post-conviction relief. Grinols v. State, 74 P.3d 889 (Alaska 2003).

H.Liberty Interests

Findings required for involuntary administration of psychotrophic drugs. —

Trial court’s order approving administration of psychotropic drugs to the patient pursuant to AS 47.30.839 was vacated because the patient’s right to choose or reject medication was a fundamental right, and thus the liberty and privacy guarantees in this section and Alaska Const. art. I, § 22 required the courts, not physicians, to protect and enforce those guarantees: In future non-emergency cases, a court may not permit a treatment facility to administer psychotropic drugs unless the court makes findings that comply with all applicable statutory requirements and, in addition, expressly finds by clear and convincing evidence that the proposed treatment is in the patient’s best interests and that no less intrusive alternative is available. Myers v. Alaska Psychiatric Inst., 138 P.3d 238 (Alaska 2006).

Termination of employment. —

In terminating a police chief’s employment upon accusations of his use of excessive force, the city did not infringe upon a liberty interest because it did not impugn his honesty, integrity or morality. Ramsey v. City of Sand Point, 936 P.2d 126 (Alaska 1997).

Sex offender registration. —

Applying the Alaska Sex Offender Registration Act, AS 12.63.010 et seq., to a person whose conviction was set aside under AS 12.55.085 before the Act became specifically applicable to convictions that were set aside unconstitutionally interferes with the individual’s liberty interests. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

While the Alaska Sexual Offender Registration Act, AS 12.63.010 12.63.100 , violated the Due Process Clause, its defect could be cured by creation of a procedure for offenders to establish their non-dangerousness by filing a civil action in a superior court. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

While the Alaska Sexual Offender Registration Act, AS 12.63.010 12.63.100 , violated the Due Process Clause, its defect could be cured by creation of a procedure for offenders to establish their non-dangerousness by filing a civil action in a superior court. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Requirement of registration as sex offender violates liberty interest. —

Defendant’s liberty interests were violated when he was required to register under AS 12.63.010 et seq. after a trial court found that he had satisfied the requirements of his suspended imposition of sentence in accordance with AS 12.55.085 , was entitled to a set-aside, and then set aside his conviction. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Prisoner’s rights. —

Temporary interruption of a prisoner’s contact visitation does not interfere with a protectable liberty interest. Larson v. Cooper, 90 P.3d 125 (Alaska 2004).

Collateral references. —

16A Am.Jur.2d, Constitutional Law, § 942 et seq.

16C C.J.S., Constitutional Law, § 1434 et seq.

Attorneys: procedural due process requirements in proceedings involving applications for admission to bar. 2 ALR3d 1266.

Comment note. — Prospective or retroactive operation of overruling decision. 10 ALR3d 1371.

Validity, as a matter of due process, of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transaction within the state. 20 ALR3d 1201.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Validity, construction, and application of enactment, implementation, or repeal of formal educational requirement for admission to the bar. 44 ALR4th 910.

Podiatry or chiropody statutes: validity, construction, and application. 45 ALR4th 888.

Validity and construction of terroristic threat statutes. 45 ALR4th 949.

Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Validity, construction, and effect of state statutes restricting political activities of public officers or employees. 51 ALR4th 702.

College’s power to revoke degree. 57 ALR4th 1243.

Tax on hotel-motel room occupancy. 58 ALR4th 274.

AIDS infection as affecting right to attend public school. 60 ALR4th 15.

Homicide: cremation of victim’s body as violation of accused’s rights. 70 ALR4th 1091.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty. 74 ALR4th 1099.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 ALR5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 ALR5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 ALR5th 611.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 ALR5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 ALR5th 327.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 ALR5th 1.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process — weapons. 53 ALR5th 81

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process -- personal items other than weapons. 55 ALR6th 391.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases. 172 ALR Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases. 178 ALR Fed. 25.

Forcible administration of antipsychotic medication to pretrial detainees — Federal cases. 188 ALR Fed. 285.

Section 8. Grand Jury.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the armed forces in time of war or public danger. Indictment may be waived by the accused. In that case the prosecution shall be by information. The grand jury shall consist of at least twelve citizens, a majority of whom concurring may return an indictment. The power of grand juries to investigate and make recommendations concerning the public welfare or safety shall never be suspended.

Cross references. —

See AS 12.40.050 and note thereto.

Notes to Decisions

Language is identical with federal constitution. —

The language of this section relating to the grand jury is identical with a like provision in the 5th amendment to the federal constitution.State v. Shelton, 368 P.2d 817 (Alaska 1962).

Rights of an accused. —

An accused is entitled, under Alaska law, to a decision by a grand jury that there is probable cause to hold him for trial. Michael v. State, 805 P.2d 371 (Alaska 1991).

The purpose served by grand jury indictment is to give one accused of a serious offense the benefit of having private citizens judge whether there is probable cause to hold the accused for trial. Theoretically this acts as a check upon the district attorney’s power to initiate criminal prosecutions, and insures the protection of the innocent against oppression and unjust prosecution. Doe v. State, 487 P.2d 47 (Alaska 1971).

Indictment requirements in Alaska Crim. R. 6(n)(1) constitutional. —

To indict a defendant for a crime, Alaska Crim. R. 6(n)(1) requires the concurrence of a majority of the grand jurors sworn in, not just a majority of the jurors who deliberate on the case, and this is a valid exercise of the supreme court’s rule-making authority and does not violate this section. Sanford v. State, 24 P.3d 1263 (Alaska Ct. App. 2001).

Protection of the innocent is a vital function of the grand jury against oppression and unjust prosecution. State v. Shelton, 368 P.2d 817 (Alaska 1962).

The purpose served by grand jury indictment is to give one accused of a serious offense the benefit of having private citizens judge whether there is probable cause to hold the accused for trial. The grand jury protects the innocent from unjust prosecution by acting as a check on the prosecutor. Adams v. State, 598 P.2d 503 (Alaska 1979).

Children need not be indicted by grand jury. —

Children who are charged with acts which would be chargeable only by grand jury indictment if committed by an adult need not be indicted by a grand jury. Doe v. State, 487 P.2d 47 (Alaska 1971).

The right to grand jury indictment is not so fundamental that due process is offended by alternate methods for instituting children’s proceedings where the child is charged with having violated a criminal statute. Doe v. State, 487 P.2d 47 (Alaska 1971).

Grand jury proceedings cannot be turned into a mini-trial. —

The grand jury is an accusatorial body operating without a judicial officer to pass on the admissibility of evidence, and as such is charged with a determination of the probability of guilt. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Anti-suspension clause. —

Criminal Rule 6.1, which provides a procedure for judicial review of grand jury reports before they are published, does not violate the anti-suspension clause of this section. O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991).

Review of misdemeanor charges. —

The constitution does not require grand jury review of misdemeanor charges, no matter how many are joined together. Skuse v. State, 714 P.2d 368 (Alaska Ct. App. 1986).

Right to indictment by grand jury free of prosecutor-instigated prejudice. —

Although no provision of the United States or Alaska constitutions specifically guarantees the right of an accused to be indicted by a grand jury free of prosecutor-instigated prejudice, a strong historical basis exists for holding that the grand jury should operate to control abuses by the government and protect the interests of the accused. Coleman v. State, 553 P.2d 40 (Alaska 1976).

When presenting a case to a grand jury the prosecutor should not make statements or arguments which would influence the grand jury in a manner that would be impermissible at trial. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Prosecutor not generally answerable for utterances of witnesses. —

Absent some evidence that the prosecutor knew or should have known that the response to his question would contain improper evidence, he is not held answerable for the utterances of the witness. This does not mean to imply that a prosecutor need not be concerned with the answers his questions might elicit. He remains under a duty to present to the grand jury only that evidence which he believes would be admissible at trial. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Aggravating factor need not be charged in indictment. —

In a manslaughter case, even though U.S. Const. amend. VI, as interpreted in Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, guaranteed defendant the right to jury trial on an aggravating factor listed in AS 12.55.155(c) , that aggravating factor was not an element of defendant’s crime for purposes of the grand jury clause of the Alaska Constitution; thus, the state was not required to charge its proposed aggravating factor in defendant’s indictment, and defendant was not entitled to a new jury trial on the aggravating factors. State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006).

Hearsay evidence. —

In order to support a grand jury indictment, the hearsay evidence must present a sufficiently detailed account of the defendant’s activity and the hearsay declarant must be sufficiently reliable. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Hearsay evidence held inadmissible. —

Indictment against defendant for escaping from a halfway house was invalid because it was based on an incident report — prepared by a staff member at the halfway house, relaying another resident's description of defendant's conduct, and introduced to the grand jury through the testimony of an uninvolved supervisor — that was not admissible under the business records exception and without the report the evidence before the grand jury was insufficient to support an indictment. The error was not rendered harmless by defendant's conviction. Wassillie v. State, 411 P.3d 595 (Alaska 2018).

Hearsay in cases of sexual assault on children. —

Permitting hearsay before a grand jury in cases of sexual assault on children does not deprive a defendant of due process or of the constitutional right to a grand jury review of the prosecution’s evidence before the return of an indictment. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Actions of prosecuting attorney did not improperly influence grand jury. —

Coleman v. State, 553 P.2d 40 (Alaska 1976).

To overturn an indictment because of grand jury prejudice, a defendant should make a factual showing of prejudice. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983).

A trial cannot validate an otherwise invalid indictment. Adams v. State, 598 P.2d 503 (Alaska 1979).

Although the state presented sufficient evidence at trial to sustain a conviction of mayhem, because the trial followed an invalid indictment, the supreme court reversed the conviction. Adams v. State, 598 P.2d 503 (Alaska 1979).

Failure of prosecutor to present to grand jury witness’s description of the occupant of a car he had observed on the morning of the murder did not violate the duty imposed by Cr. R. 6(q) to disclose exculpatory evidence to the grand jury and, therefore, would not have violated any constitutionally imposed duty of disclosure. Frink v. State, 597 P.2d 154 (Alaska 1979).

Nonreversible error. —

Where an unintentional misstatement before the grand jury goes to a nonmaterial fact that would not substantially affect the grand jury’s conclusion, it will not be reversible error. Keith v. State, 612 P.2d 977 (Alaska 1980).

Reversible error. —

Where defendant was indicted for assault in the first degree but convicted of second-degree assault on the theory that he had breached his duty as a parent to protect his child after becoming aware of the threat of physical abuse by the child’s mother, the conviction for an offense different than the one charged was a fatal variance, and required reversal. Michael v. State, 805 P.2d 371 (Alaska 1991).

Decision to prosecute on lesser offense. —

When offenses are so separate that they are not subject to merger, if a decision to prosecute on the lesser offense is to be made, it is the grand jury that must make it. Moore v. State, 740 P.2d 472 (Alaska Ct. App. 1987).

Grand jury bias due to pre-indictment publicity. —

See Chief v. State, 718 P.2d 475 (Alaska Ct. App. 1986).

Applied in

Morgan v. State, 673 P.2d 897 (Alaska Ct. App. 1983).

Quoted in

Triangle, Inc. v. State, 632 P.2d 965 (Alaska 1981); Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981); Cameron v. State, 171 P.3d 1154 (Alaska 2007).

Cited in

Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); Bragg v. State, 435 P.3d 998 (Alaska Ct. App. 2018).

Section 9. Jeopardy and Self-Incrimination.

No person shall be put in jeopardy twice for the same offense. No person shall be compelled in any criminal proceeding to be a witness against himself.

Notes to Decisions

Analysis

I.General Consideration

Applied in

Galauska v. State, 527 P.2d 459 (Alaska 1974); Boyles v. State, 647 P.2d 1113 (Alaska Ct. App. 1982); Walker v. State, 674 P.2d 825 (Alaska Ct. App. 1983).

Quoted in

State v. Keep, 409 P.2d 321 (Alaska 1965); Roberts v. State, 458 P.2d 340 (Alaska 1969); DeSacia v. State, 469 P.2d 369 (Alaska 1970); Shagloak v. State, 597 P.2d 142 (Alaska 1979); Thibedeau v. State, 617 P.2d 759 (Alaska 1980).

Cited in

State v. Gibson, 543 P.2d 406 (Alaska 1975); Mutschler v. State, 560 P.2d 377 (Alaska 1977); Lock v. State, 609 P.2d 539 (Alaska 1980); Koch v. State, 653 P.2d 664 (Alaska Ct. App. 1982); Kott v. State, 678 P.2d 386 (Alaska 1984); Hilburn v. State, 765 P.2d 1382 (Alaska Ct. App. 1988); Hazelwood v. State, 836 P.2d 943 (Alaska Ct. App. 1992); State v. Hazelwood, 866 P.2d 827 (Alaska 1993); State v. Waterman, 196 P.3d 1115 (Alaska Ct. App. 2008).

II.Jeopardy
A.In General

Protection afforded. —

The double jeopardy clause protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and, it protects against multiple punishments for the same offense. Calder v. State, 619 P.2d 1026 (Alaska 1980).

One of the great purposes of the double jeopardy clause is to prevent popular pressures from operating to the detriment of the accused after he has once been sentenced. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

The double jeopardy clause is aimed at protecting individuals from oppression and harassment by successive prosecutions. Muller v. State, 478 P.2d 822 (Alaska 1971).

Statutory implementation. —

AS 22.05.010 furnishes the essential implementation for constitutional protection against double jeopardy. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Double jeopardy is an evolving concept as due process is. Whitton v. State, 479 P.2d 302 (Alaska 1970).

What in fact today is “jeopardy,” as it relates to a criminal offense, according to the existing common understanding of the term, may not have been even contemplated at the time the federal constitutional provision was adopted, or for that matter, the Alaska constitutional provision. Whitton v. State, 479 P.2d 302 (Alaska 1970).

The present dictionary meaning of “jeopardy,” as it pertains to a person, is the loss or injury or hazard or peril or danger to which one may become exposed. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Double jeopardy. —

When the State relies on the infliction of serious physical injury to elevate second-degree robbery to first-degree robbery under AS 11.41.500(a)(3) , Alaska's Double Jeopardy Clause does not permit a separate conviction for assault based on the same injury. Smith v. State, 426 P.3d 1162 (Alaska Ct. App. 2018).

Collateral estoppel is embodied in principles of double jeopardy. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Evidence not barred by doctrine of collateral estoppel. —

See Piesik v. State, 572 P.2d 94 (Alaska 1977).

When defendant in jeopardy. —

A defendant is considered to have been placed in jeopardy as soon as he has gone to trial and the jury is sworn. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Where the jury had already been sworn and the trial had commenced, the defendants were placed in jeopardy. Muller v. State, 478 P.2d 822 (Alaska 1971).

Jeopardy attaches when a defendant is placed on trial before a court of competent jurisdiction and a jury sworn. Koehler v. State, 519 P.2d 442 (Alaska 1974).

Defendant’s constitutional right to be free from double jeopardy was violated upon being subjected to the same charges of first-degree murder again at a second trial, where the judge at defendant’s first trial had abused his discretion in refusing to resolve a juror’s questions which evidenced some possibility of reaching a partial verdict, or to repoll the jury as requested by defendant, and declaring a mistrial after concluding that there was no probability that a unanimous verdict could be reached. Whiteaker v. State, 808 P.2d 270 (Alaska Ct. App. 1991).

The defendant in a criminal jury trial is placed in jeopardy as soon as the jury is sworn. Torres v. State, 519 P.2d 788 (Alaska 1974).

Jeopardy attaches when the jury was sworn at the first trial. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Conviction of an offense places a person in jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970).

When a person is convicted of a crime, he has been exposed to the danger of loss of his freedom by way of imprisonment. Whitton v. State, 479 P.2d 302 (Alaska 1970).

If a jury is discharged with defendant’s consent, defendant may be tried again. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Court of appeals erred in holding that the violation of defendant's privilege against self-incrimination, guaranteed by the state and federal constitutions, was not a structural error requiring reversal because compelling defendant to take the stand implicated personal interests more fundamental than the ordinary risk of a wrongful conviction where, although a few isolated comments by defendant indicated that he wanted to take the stand, the entirety of his equivocal responses placed the notion that he wanted to testify in doubt and the trial court erred when it directed the judicial services officer to escort defendant to the stand and summoned the jury to hear defendant's testimony despite his equivocal answers. Alvarez-Perdomo v. State, 454 P.3d 998 (Alaska 2019).

If a jury is discharged without defendant’s consent, he cannot be tried again. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Erroneous dismissal does not preclude retrial. —

The double jeopardy clause does not preclude retrial after an order of dismissal if the order was erroneous. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

Reversal on error of law does not preclude retrial. —

One who secures a reversal of a conviction on a mere error of law is not subjected to double jeopardy when he is retried. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Waiver. —

When a defendant creates the situation whereby he is removed from jeopardy, he thereby waives his right to plead former jeopardy at another trial of the case. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

A defendant may waive his constitutional right of double jeopardy by consenting to the discharge of a jury. However, the defendant’s consent will not operate in all instances as a waiver of his constitutional right even if there is a manifest necessity to prematurely terminate trial court proceedings. Torres v. State, 519 P.2d 788 (Alaska 1974).

A claim based upon double jeopardy in reliance on the state constitution can be waived, but is not forfeited, by a guilty plea, even a guilty plea that is part of a negotiated settlement. Lemon v. State, 654 P.2d 277 (Alaska Ct. App. 1982).

A defendant waives any double jeopardy claim he might otherwise have by moving for a mistrial or by appealing his conviction. Loveless v. State, 634 P.2d 941 (Alaska Ct. App. 1981).

Juvenile waiver hearing. —

Fundamental fairness requires adopting an exclusionary rule when a minor bears the burden of rebutting the statutory presumption not being amenable to treatment in the juvenile justice system: the minor's testimonial evidence at the waiver hearing cannot be used as substantive evidence over the minor's objection at any subsequent juvenile adjudication or adult criminal proceedings. C.D. v. State, 458 P.3d 81 (Alaska 2020).

Exclusionary rule is necessary, as a matter of fundamental fairness, to balance a minor's right to present a defense at a waiver proceeding against the minor's privilege against self-incrimination; by requiring a minor to choose between presenting relevant, testimonial, amenability-to-treatment evidence or preserving the privilege against self-incrimination, AS 47.12.100(c)(2) forces a minor into an unfair dilemma. C.D. v. State, 458 P.3d 81 (Alaska 2020).

For cases in which AS 47.12.100(c)(2) applies, it is necessary to exercise an exclusionary rule preventing the State, over the juvenile's objection, from using a minor's juvenile waiver hearing testimony, and the fruits of that testimony, at a subsequent criminal trial or adjudicatory proceeding in juvenile court; juveniles in such hearings must be advised in advance that testimony may not be admitted against them at a subsequent trial on the underlying offense. C.D. v. State, 458 P.3d 81 (Alaska 2020).

Retrial after mistrial on principal offense. —

The double jeopardy clauses of the United States and Alaska constitutions did not preclude retrial of a defendant for a principal offense when the jury, deadlocked on the principal offense, was permitted to convict on a lesser-included offense. Hughes v. State, 668 P.2d 842 (Alaska Ct. App. 1983), overruled, Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994).

A jury’s inability to agree on a greater offense constitutes “manifest necessity” permitting discharge of the jury despite a potential ability to agree on one or more lesser-included offenses. Staael v. State, 697 P.2d 1050 (Alaska Ct. App. 1985).

Where mistrial motion not withdrawn, retrial constitutional. —

Defense counsel’s “Just for the record, we’re not conceding manifest necessity” did not constitute an unequivocal withdrawal of a motion for mistrial; therefore, a retrial did not violate the double jeopardy clause. Peel v. State, 751 P.2d 1366 (Alaska Ct. App. 1988).

Innocence of one codefendant does not preclude prosecution of other. —

A judgment in a criminal case favorable to one defendant should not bar prosecution of a codefendant in a subsequent proceeding. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

Appeal from acquittal. —

Both the state and federal constitutional prohibitions against placing a defendant twice in jeopardy insulate him from an appeal from a judgment of acquittal however erroneous the trial judge’s view of the facts or the law. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

If the jury reaches a verdict of acquittal, or the judge grants a judgment of acquittal, double jeopardy bars a new trial, even if it appears that the acquittal was based on an erroneous interpretation of the law. Noy v. State, 83 P.3d 545 (Alaska Ct. App. 2003).

Right of state to appeal in criminal proceedings. —

With limited exceptions, the state cannot appeal an adverse final judgment in a criminal proceeding; but where review is not barred by considerations of double jeopardy, the state can seek discretionary review of an adverse final order by means of a petition for review. State v. Stocker, 741 P.2d 1215 (Alaska Ct. App. 1987).

Accused’s reference to improper evidence was insufficient in itself to deprive the accused of his constitutional right not to be subject to double jeopardy. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Dismissal of later indictment required. —

This section required a trial court to dismiss an indictment for tampering with evidence against a defendant who had been acquitted of first-degree murder in connection with the same incident. State v. Williams, 704 P.2d 219 (Alaska Ct. App. 1985), aff'd, 730 P.2d 806 (Alaska 1987).

Multiple punishments for one or “the same” offense violate the state constitutional inhibition against double jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970); Brookins v. State, 600 P.2d 12 (Alaska 1979).

This section prevents one from receiving multiple prison sentences for the same offense. McCracken v. State, 521 P.2d 499 (Alaska 1974); Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

The test for determining whether separate statutory crimes constitute the “same offense” for purposes of prohibiting double punishment is whether differences in intent or conduct between the statutory offenses are substantial in relation to the basic social interests protected or vindicated by the statutes. Calder v. State, 619 P.2d 1026 (Alaska 1980).

If one conviction makes a person liable for two sentences instead of one, then the loss or peril to which he has been exposed — double punishment — has placed him in jeopardy twice for the same offense. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Where two sentences are imposed for the same offense, even though they are for the same period of time and are to run concurrently, the constitutional prohibition against double jeopardy has been violated. Whitton v. State, 479 P.2d 302 (Alaska 1970).

If there are no differences in intent or conduct, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970); Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

If differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. Whitton v. State, 479 P.2d 302 (Alaska 1970); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Ordinarily the one sentence to be imposed will be based upon or geared to the most grave of the offenses involved, with degrees of gravity being indicated by the different punishments prescribed by the legislature. Whitton v. State, 479 P.2d 302 (Alaska 1970); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Where defendant presented two checks for payment and was guilty of obtaining money by false pretenses and forgery, even though the separate counts for each check represented two distinct acts (the forgery of the endorsement and the presentation of the check for payment), the conduct as to each check constituted one transaction with a single intent to defraud; therefore, duplicate sentencing was illegal. Black v. State, 569 P.2d 804 (Alaska 1977).

The differences between the conduct and intent required for kidnapping and murder are substantial when viewed in relation to the overlapping but nonetheless distinct social interests they protect. Therefore, the imposition of concurrent sentences would not place defendant twice in jeopardy for the same offense. Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

The possibility that defendant’s assault with a dangerous weapon victimized one or two people did not change the fact that one shot was fired between those two persons and that defendant was charged and convicted of only one assault. The principle of double jeopardy would have barred a subsequent prosecution, and would have barred multiple punishments for this one offense. Larson v. State, 569 P.2d 783 (Alaska 1977).

When multiple sentences are imposed, the trial judge must affirmatively state reasons for his decision to do so. Jacinth v. State, 593 P.2d 263 (Alaska 1979).

In the event the trial judge decides that multiple sentences may be imposed without contravening the double jeopardy provision, the reasons for his determination must affirmatively appear in the record. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Trial on greater offense after conviction of lesser offense. —

Alaska constitutional law does not preclude trial on a greater offense after conviction of a lesser offense where the two offenses are charged together and an intervening plea to the lesser offense or mistrial on the greater offense precludes the state from having a jury pass on the greater offense. Alley v. State, 704 P.2d 233 (Alaska Ct. App. 1985).

Whether the prosecutor charges the accused in a multiple-count indictment or a single-count indictment for an offense involving lesser-included offenses, the defendant’s double jeopardy rights are the same. Whiteaker v. State, 808 P.2d 270 (Alaska Ct. App. 1991).

Where defendant knew at arraignment he was charged in separate documents with misdemeanor and felony DWI arising from the same conduct, double jeopardy did not bar prosecution of felony charge if defendant pleaded guilty to misdemeanor charge. Ridlington v. State, 93 P.3d 471 (Alaska Ct. App. 2004).

Conviction of offense and lesser included offense. —

Multiple punishment for a greater offense and a lesser-included offense violates Alaska constitutional law. See Alley v. State, 704 P.2d 233 (Alaska Ct. App. 1985).

In defendant’s trial for first-degree robbery and third degree assault, defendants should not have received separate convictions and sentences because the assault conviction merged with the robbery conviction. Moore v. State, 218 P.3d 303 (Alaska Ct. App. 2009).

Raising double jeopardy issue on appeal. —

Double jeopardy issues may be raised for the first time on appeal without prejudice. Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988); Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988).

Once a sentence has been meaningfully imposed, it may not, at a later time, be increased. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

Where a defendant was convicted of three separate offenses, and the court imposed a single 15-year term without specifying the offenses to which it applied, the sentence amounted to an unlawful general sentence, so that the court’s subsequent finding of applicable aggravating factors and its resentencing of the defendant to a greater composite term than had originally been imposed violated the defendant’s right against double jeopardy. Love v. State, 799 P.2d 1343 (Alaska Ct. App. 1990).

Once a legal sentence is imposed which is within the discretion of the trial judge, the defendant’s sentence may not thereafter be increased. State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983).

The modification of a sentence from two consecutive four-year terms of imprisonment to two concurrent terms of eight years each is illegal. The reason is that the modification or resentencing was in effect an increase of the sentence, and this is barred by the principle of double jeopardy. Huff v. State, 568 P.2d 1014 (Alaska 1977).

An upward modification of a sentence meaningfully imposed would subject criminal defendants to the anxiety and insecurity against which the constitutional prohibition of double jeopardy stands as a safeguard. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

A sentence is meaningfully imposed when it is legally imposed and not subject to change under the Alaska Criminal Rules. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

The double jeopardy clause prohibits the court from increasing a sentence once it has been meaningfully imposed. A sentence is “meaningfully imposed” when it is legally imposed and not subject to modification under the rules of criminal procedure. Dunham v. City of Juneau, 790 P.2d 239 (Alaska Ct. App. 1990).

An original sentence which fell short of the mandatory minimum sentence for a second DWI offender, and was consequently illegal, was subject to correction under Criminal Rule 35(a) and was therefore not a “meaningfully imposed” sentence for double jeopardy purposes. Dunham v. City of Juneau, 790 P.2d 239 (Alaska Ct. App. 1990).

Sentence based on conduct for which defendant acquitted. —

Double jeopardy and due process are not implicated when a person who has been acquitted of certain conduct is sentenced on the basis that the conduct occurred. The reason for this rests on the differing burdens of proof. In order to convict a defendant of an offense, the state must prove guilt beyond a reasonable doubt. In contrast, a trial court imposing sentence may rely on any information that is verified in the record. Brakes v. State, 796 P.2d 1368 (Alaska Ct. App. 1990).

Restitution imposed at resentencing. —

Where restitution was not imposed as a condition of defendant’s probation at original sentencing, Alaska law does not authorize the judge to go back and add this condition to probation at subsequent resentencing following vacation of original sentence. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Permissible modification of sentence. —

Judge’s oversight in not imposing suspended time in conjunction with two-year probation was an obvious error and modification of the sentence, moments after imposition, to include suspended time, did not violate constitutional prohibition of double jeopardy. Dentler v. State, 661 P.2d 1098 (Alaska Ct. App. 1983).

Where a magistrate made “an objectively ascertainable mistake” in imposing a sentence in a proceeding for revocation of probation, the sentence was subject to correction under Cr. R. 36 without violence to the double jeopardy prohibition. DeMario v. State, 933 P.2d 558 (Alaska Ct. App. 1997).

Increasing sentence on remand. —

The double jeopardy clause precludes the sentencing court from increasing the original sentence on remand. Hester v. State, 797 P.2d 690 (Alaska Ct. App. 1990).

Imposition of two additional years of probation upon resentencing following a successful sentence appeal constituted an illegal sentence in violation of the guarantee against double jeopardy. Hester v. State, 797 P.2d 690 (Alaska Ct. App. 1990).

Failure to reduce a sentence did not violate double jeopardy. Bell v. State, 668 P.2d 829 (Alaska Ct. App. 1983).

Vacating illegal sentence. —

The double jeopardy clauses of the United States and Alaska constitutions did not prevent court from vacating a sentence, ordering resentencing, and allowing the sentencing judge or a three-judge panel to impose a greater sentence than the illegal sentence which was imposed. State v. LaPorte, 672 P.2d 466 (Alaska Ct. App. 1983).

Construction of Cr. R. 36. —

Where the effect of an amendment is to increase the severity of a sentence, Cr. R. 36, which is available for the correction of “clerical mistakes” or “errors in the record arising from oversight or omission,” must be interpreted to be applicable only to sentencing errors which obviously conflict with the intention of the court and, so construed, the rule is in consonance with the double jeopardy clause of the Alaska and United States constitutions. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

If Cr. R. 36 is not to clash with the prohibition against double jeopardy, only an objectively ascertainable mistake — a mistake which can be determined by contemporaneous record evidence — will justify increasing a sentence. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

An increased sentence after a second trial does not violate double jeopardy. United States v. Lincoln, 581 F.2d 200 (9th Cir. Alaska 1978).

Rehabilitative confinement as incarceration. —

Amended sentence authorizing DWI defendant’s placement in a residential treatment facility violated defendant’s double jeopardy rights, as custodial confinement in a residential alcohol treatment program is the functional equivalent of jail time and therefore constituted a sentence of imprisonment. Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

B.Mistrial

Standard of “manifest necessity” adopted. —

In federal courts the test for determining what situations would justify the premature termination of an initial trial without barring retrial under the double jeopardy prohibition has been articulated in terms of “manifest necessity.” The supreme court of Alaska adopts and applies the federal standard. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Unforseen circumstances do not bar second trial. —

Jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where unforeseeable circumstances arise during the first trial making its completion impossible. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970); Lewis v. State, 452 P.2d 892 (Alaska 1969).

Failure of trial to end in final judgment. —

The fact that an accused has been placed on trial before a competent tribunal does not, standing alone, invariably bar his reprosecution if the trial did not result in a verdict. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The double-jeopardy provision of the 5th amendment does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. A defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. In capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. The security which the public has for the faithful, sound and conscientious exercise of this discretion rests upon the responsibility of the judges under their oaths of office. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The fact that an individual is once placed in jeopardy does not mean that, if a mistrial is declared, he cannot later be brought to trial anew. Muller v. State, 478 P.2d 822 (Alaska 1971).

Discussion of circumstances permitting retrial of accused even though the first trial jury had been discharged without reaching a verdict and without the defendant’s consent. Lewis v. State, 452 P.2d 892 (Alaska 1969).

If the court discharges the jury without a verdict being reached, the defendant cannot be retried unless he consented to the discharge or “manifest necessity” required it. Koehler v. State, 519 P.2d 442 (Alaska 1974).

The premature termination of a trial will bar retrial under the double jeopardy prohibition unless the termination was justified by manifest necessity. MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 101 (U.S. 1975).

After the jury is sworn, double jeopardy bars a retrial unless the first trial was prematurely terminated due to “manifest necessity.” Piesik v. State, 572 P.2d 94 (Alaska 1977).

Manifest necessity to declare mistrial not found. —

Where there was no manifest necessity for declaring a mistrial because any misunderstanding the jury had from defendant’s opening statement could have been cured with an instruction, and because the mistrial was declared over defendant’s objection, double jeopardy barred retrial. Tritt v. State, 173 P.3d 1017 (Alaska Ct. App. 2008).

Courts have recognized the involuntary absence of defendant and his counsel when the trial court discharges the jury as a factor in holding that the mistrial was not pursuant to a “manifest necessity.” Koehler v. State, 519 P.2d 442 (Alaska 1974).

Manifest necessity for mistrial. —

The general rule is that where a mistrial is declared by reason of a manifest necessity, double jeopardy will not bar a retrial. Muller v. State, 478 P.2d 822 (Alaska 1971); White v. State, 523 P.2d 428 (Alaska 1974).

If a mistrial is declared in the absence of a manifest necessity, then a retrial will be barred by double jeopardy. Muller v. State, 478 P.2d 822 (Alaska 1971).

Where a defendant insists that a mistrial is necessary, and where the trial court agrees, the manifest necessity for a mistrial may be considered to have been adequately established. Muller v. State, 478 P.2d 822 (Alaska 1971); White v. State, 523 P.2d 428 (Alaska 1974).

A “manifest necessity” must exist for all mistrials, including hung juries, before reprosecution is permissible under the double jeopardy clause. Koehler v. State, 519 P.2d 442 (Alaska 1974).

By requesting a mistrial, the defendant consents to the dismissal of the jury, and can therefore usually be retried. Muller v. State, 478 P.2d 822 (Alaska 1971).

The prosecutor’s concurrence in the defendants’ motion for mistrial did not negate the effect of their request for mistrial, and the trial court was bound to make a specific inquiry into the issue of manifest necessity. Muller v. State, 478 P.2d 822 (Alaska 1971).

Where the mistrial was entered on defendant’s motion and neither party disputed the propriety of the court’s granting a mistrial, manifest necessity was sufficiently established. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Mistrial declared at request of defendant. —

The requisite manifest necessity which prevents a declaration of mistrial from barring reprosecution will generally be found where the mistrial is declared at the request of the defendant. MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 101 (U.S. 1975).

When defense counsel did not effectively attempt to withdraw his request for a mistrial, and the trial court judge, in declaring a mistrial, was responding to defense counsel’s request, since the mistrial was thus declared at the request of the defendant, reprosecution of the defendant is not barred by the constitutional prohibitions against being placed twice in jeopardy. MacPherson v. State, 533 P.2d 1103 (Alaska), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 101 (U.S. 1975).

Generally, when a trial is terminated at the defendant’s motion or with the defendant’s request, retrial is not prohibited by double jeopardy. Piesik v. State, 572 P.2d 94 (Alaska 1977).

The possibility that a criminal defendant might claim error on appeal does not equate to manifest necessity; if a mistrial could be declared against the wishes of the accused every time potential error occurred, the constitutional protection against double jeopardy would become virtually meaningless. Cross v. State, 813 P.2d 691 (Alaska Ct. App. 1991).

Where a potential conflict of interest arose from the fact that another assistant public defender (apparently not defendant’s counsel) had previously represented a key defense witness in connection with an unrelated matter, and it was not obvious that the potential conflict was an actual one, and it was not apparent that the conflict could not have been resolved by precluding the agency from representing the former client as a witness in defendant’s case, the court failed to adequately explore the existence of the conflict, or remedies short of a mistrial so that the mistrial violated defendant’s constitutional right against double jeopardy. Cross v. State, 813 P.2d 691 (Alaska Ct. App. 1991).

Defendant’s interest in particular jury subordinated to public interest. —

As a general rule, when a trial is terminated due to manifest necessity, the defendant’s interest in having a particular jury determine his fate is subordinated to the public interest in securing fair trials designed to end in fair judgments. This principle has been recognized in instances where the jury is unable to reach a verdict, or where jurors become disqualified or ill prior to reaching a verdict. Torres v. State, 519 P.2d 788 (Alaska 1974).

Right of defendant to have his trial completed before the jury originally empaneled must at times be subordinate to a greater public interest. Muller v. State, 478 P.2d 822 (Alaska 1971).

Manifest necessity test in cases of potentially hung juries. —

In cases of potentially hung juries, the “manifest necessity” test under former Cr. R. 27 (g)(2) ordinarily becomes whether there is “no probability” that a unanimous verdict will be reached. This discretionary standard is generally recognized by most courts. Koehler v. State, 519 P.2d 442 (Alaska 1974).

Discharge of the jury is not permitted merely because jurors report they have not been able to agree. Koehler v. State, 519 P.2d 442 (Alaska 1974).

American Bar Association approach to discharge of hung juries. —

See Koehler v. State, 519 P.2d 442 (Alaska 1974).

Misconduct of accused or his counsel. —

There are instances of serious misconduct on the part of an accused, or his counsel, which make permissible both the granting of a mistrial and reprosecution. Such an occasion is where the accused or his counsel attempted to tamper with the jury. Lewis v. State, 452 P.2d 892 (Alaska 1969).

The constitutional prohibition against double jeopardy should not be construed so as to permit intentional misconduct on the part of an accused or his counsel to become the basis of a bar to reprosecution. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Research does not disclose any case in which the granting of a mistrial for misconduct of defense counsel has been upheld, although conceivably such action would be proper in case of misconduct going to the very vitals of the trial itself, for example, if the defendant or his counsel attempted to tamper with the jury. Minor misconduct of defense counsel, such as overstepping the limit set by the court for the examination of a witness, does not under the authorities warrant a mistrial thereby depriving the defendant of his right to secure a verdict from the jury that had been sworn to try him. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Among the “necessities” which may deprive the accused of a right to rely on former jeopardy is that the mistrial was caused by the accused in consequence of his own wrong or request, or by his consent. But it is further noted that the occasion for it must be very cogent, or, as some courts have said, there must be an absolute necessity. Moreover, it must be determined in each case whether or not the circumstances necessitated a discharge of the jury. Lewis v. State, 452 P.2d 892 (Alaska 1969).

Mistrial precipitated by prosecutor. —

Oppression will be most acute where a prosecutor deliberately precipitates a mistrial in a case which is going badly in order to allow himself, at a later time, either to present a better case or simply to harass the defendant with another prosecution. Muller v. State, 478 P.2d 822 (Alaska 1971).

In cases where it is clear that the prosecutor, motivated by a desire to avoid an acquittal in a case which is going badly, engages in purposeful misconduct which forces the court to declare a mistrial, the policy of protecting an accused individual from harassment by consecutive prosecution may demand that a retrial be barred, even though the mistrial was manifestly necessary. Muller v. State, 478 P.2d 822 (Alaska 1971).

In order for prosecutorial misconduct to justify a mistrial, thereby precluding further prosecution, the conduct must be designed to avoid an acquittal when the prosecution’s case is going badly. Torres v. State, 519 P.2d 788 (Alaska 1974); Piesik v. State, 572 P.2d 94 (Alaska 1977).

Where zeal leads to the introduction of evidence which may stampede the jury to an unproven inference and an unfair verdict, the remedy is a mistrial. Double jeopardy will not prevent a second trial unless the conduct of the state’s attorney is “motivated by a desire to avoid an acquittal in a case which is going badly.” White v. State, 523 P.2d 428 (Alaska 1974).

Where prosecutorial misconduct is the basis of the defendant’s motion for mistrial, such misconduct can result in precluding further prosecution. Piesik v. State, 572 P.2d 94 (Alaska 1977).

Where the prosecutor’s remarks which led to the declaration of a mistrial were negligently made, and fell short of evidencing the requisite element of intentional misconduct, retrial was not barred. Muller v. State, 478 P.2d 822 (Alaska 1971).

Where a defendant seeks a mistrial because of prosecutorial misconduct, retrial may be barred. Loveless v. State, 634 P.2d 941 (Alaska Ct. App. 1981).

Prosecutor’s comments on defendant’s invocation of his right to silence amounted to plain error because the prosecutor directly elicited evidence of defendant’s silence on cross-examination, and then he expressly commented on that silence during his closing argument; the case hinged on the conflicting testimony of defendant and the complainant. Adams v. State, 261 P.3d 758 (Alaska 2011).

C.Probation

No violation in including in judgment all probation conditions not mentioned in remarks. —

At the sentencing hearing, the prosecutor, defense attorney, and judge were all operating with the understanding that, in the absence of an objection, the judge would impose all of the recommended conditions of probation; thus, the judge did not violate the double jeopardy clause when he included all of the recommended probation conditions in his written judgment, even though he did not explicitly mention all of those conditions during his sentencing remarks. Love v. State, 436 P.3d 1058 (Alaska Ct. App. 2018).

Double jeopardy prohibits making flawed probation condition more onerous. —

Where the sentencing court failed to specify, pursuant to AS 12.55.100(c) , the maximum length of time that defendant was to spend in residential treatment for her alcohol problem as a condition of her probation, the court’s subsequent order setting the maximum length of residential treatment at 90 days constituted an increase in the defendant’s sentence in violation of the constitutional guarantee against double jeopardy. An illegal sentence should not be increased unless absolutely necessary to correct the illegality. In this case the illegality should have been corrected by striking the flawed portion of the probation order, i.e., the requirement of residential treatment. Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993).

A court may modify probation to the defendant’s detriment without violating the double jeopardy clause when the applicable statutes authorize the modification, as they do when the court finds that the defendant has violated probation; but, once sentence is meaningfully imposed, a sentencing court does not have the power to alter probation to the defendant’s detriment simply because the court comes to believe that a longer probationary term or more onerous conditions of probation would be better. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Post-sentencing imposition of a special condition of probation, which required defendant to submit to medical testing of his blood or urine for the presence of controlled substances, violated his double jeopardy rights. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

At defendant’s sentencing hearing, the trial court found good reason to require defendant to submit to searches for drugs and alcohol specified in a special condition of probation, but to the extent that a general condition of probation purported to authorize searches beyond the scope of the special condition, the post-sentencing imposition of the general condition constituted an improper after-the-fact alteration of defendant’s sentence to his detriment in violation of the double jeopardy clause. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Imposition of a suspended sentence upon revocation of probation involves no increase in the term to be served over the potential sentence originally imposed. Paul v. State, 560 P.2d 754 (Alaska 1977).

Where, after hearing on a petition to revoke probation, the trial court ordered defendant to serve the two years which were previously suspended and recommended that he not be eligible for parole, there was no violation of defendant’s right against double jeopardy. Charles v. State, 606 P.2d 390 (Alaska 1980).

Sentence for violation of “probation” after imprisonment served. —

In the event that a defendant served his term of imprisonment, if and when he later violated the terms of his “probation,” to thereafter impose a further sentence of imprisonment for the same offense would clearly violate the double jeopardy provisions of both the state and federal constitutions. Franzen v. State, 573 P.2d 55 (Alaska 1978).

Probation revocation generally. —

The double jeopardy clause is not violated when a sentencing court revokes a defendant’s probation and imposes a previously-suspended prison term; in such circumstances, the defendant’s sentence has not been increased because, from the beginning, it was understood that the defendant’s imprisonment would remain suspended only if the defendant abided by the conditions of probation. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Probation violation. —

In a case that had been remanded for resentencing in which (1) the judge may have been authorized to impose an increased term of probation after the hearing on defendant’s probation violation, (2) there was nothing in the record suggesting that he ever intended to do so, and (3) the judge explicitly stated that he did not intend to increase defendant’s sentence, the increased term of defendant’s probation violated his right against double jeopardy under the Alaska Constitution. Ward v. State, — P.3d — (Alaska Ct. App. July 29, 2009) (memorandum decision).

A probation revocation order which increased the minimum period that a defendant was to spend in jail violated his double jeopardy rights as well as the command of AS 33.05.070(b) in that the court upon revocation of probation may only order the defendant to serve the sentence originally imposed, or a lesser sentence, but not a greater one. Nelson v. State, 617 P.2d 502 (Alaska 1981).

Revocation of parole based on acquitted charges. —

Neither double jeopardy nor collateral estoppel prohibits revocation of parole based on charges for which the parolee has been acquitted. Double jeopardy does not apply because revocation proceedings are considered to be part of a criminal prosecution and collateral estoppel does not apply because adjudication of charges on the beyond-a-reasonable-doubt standard does not constitute an adjudication on the preponderance of the evidence standard. Avery v. State, 616 P.2d 872 (Alaska 1980).

Imprisonment for intervening offense after probation revoked. —

Upon revocation of probation, imposition of a term of imprisonment consecutive to another term for an intervening offense does not impermissibly enlarge or enhance the scope of the sentence which was originally suspended. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

D.Separate Acts

Separate acts committed by defendant. —

The state can prosecute for separate charges if it can show that the defendant committed separate acts. Seaman v. State, 825 P.2d 907 (Alaska Ct. App. 1992).

One statute, multiple victims. —

Alaska’s constitutional prohibition against double jeopardy does not bar multiple sentences for multiple victims where one statute has been violated several times. State v. Dunlop, 721 P.2d 604 (Alaska 1986).

A defendant can receive multiple sentences for injuring or killing more than one person while driving under the influence of alcohol. State v. Dunlop, 721 P.2d 604 (Alaska 1986).

Under indecent photography charges, the nature of the offense is invasion of bodily privacy; eight people suffered invasion of privacy, although defendant shot only one videotape, meaning defendant committed eight separate offenses, and he was properly convicted and sentenced for each of those offenses. Knutsen v. State, 101 P.3d 1065 (Alaska Ct. App. 2004).

An intent to harm multiple victims will lift the veil of protection which the double jeopardy doctrine might otherwise afford to a defendant. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Separate sentences may be imposed where there is evidence to support the conclusion that the offender intended to harm more than one person. Calantas v. State, 599 P.2d 147 (Alaska 1979).

Where defendant was adjudged guilty of two counts of assault with intent to kill and there was evidence supporting the jury’s conclusion that defendant intended to kill both of his victims, it was proper for the court to impose separate sentences. Calantas v. State, 599 P.2d 147 (Alaska 1979).

Consecutive sentences for robbing multiple victims. —

The double jeopardy clause does not foreclose the imposition of consecutive sentences for robbing multiple victims in the same transaction. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Contention that consecutive sentences constitute double jeopardy has no support in case law. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Imposition of consecutive sentences for separate offenses does not violate the constitutional prohibition against double jeopardy. Davis v. State, 577 P.2d 690 (Alaska 1978).

Consecutive sentences for separate offenses do not violate the constitutional prohibition against double jeopardy. Davis v. State, 566 P.2d 640 (Alaska 1977).

Where defendant was convicted on five counts of selling heroin and one count of possessing heroin and sentenced to 10 years on each count, with one sentence to run consecutively to the other five concurrent sentences for a total of 20 years imprisonment, defendant was to be ineligible for parole until he had served five years, and all the sentences were made consecutive to two sentences he had not yet finished serving, the imposition of consecutive sentences did not violate this section or Alaska Const., art. I, § 12, and the minimum of five years before parole did not violate former AS 33.15.230(a) concerning the administration of parole (see now AS 33.16). Davis v. State, 566 P.2d 640 (Alaska 1977).

Separate statutory violations as constituting same offense. —

The protection of the double jeopardy clause is total and complete when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

The problem of determining whether two separate statutory violations constitute the same offense cannot be solved by the easy application of a pat mechanical formula, but the problem has to be met so that society’s very basic interest in deterring criminal behavior can be vindicated, and at the same time so that the individual’s constitutional right not to be placed in jeopardy more than once for the same offense can be protected. Whitton v. State, 479 P.2d 302 (Alaska 1970).

Whether separate statutory offenses constitute the same offense for double jeopardy purposes should be determined by focusing upon the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes. Whitton v. State, 479 P.2d 302 (Alaska 1970); Jacinth v. State, 593 P.2d 263 (Alaska 1979).

In determining whether several statutory violations constitute the same offense for double jeopardy purposes, the supreme court will no longer follow the same-evidence test. Whitton v. State, 479 P.2d 302 (Alaska 1970).

The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. This standard is more flexible than the “same evidence” or “same transaction” tests. Whitton v. State, 479 P.2d 302 (Alaska 1970); McCracken v. State, 521 P.2d 499 (Alaska 1974); Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981); Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

In Whitton v. State , 479 P.2d 302 (Alaska 1970), the supreme court abandoned the “same-evidence” test for double jeopardy and instead directed the trial court to look to the difference in intent and conduct among the separate acts. The trial court would judge any such differences it found in light of the basic interests of society to be vindicated and protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

In regard to the subject of multiple sentences and the constitutional prohibition against double jeopardy, Whitton v. State , 479 P.2d 302 (Alaska 1970), adopted a rule which requires the trial judge to focus upon “the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or prosecuted by the statutes.” If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. Ordinarily the one sentence to be imposed will be based upon or geared to the most grave of the offenses involved, with degrees of gravity being indicated by the different punishments prescribed by the legislature. Robinson v. State, 484 P.2d 686 (Alaska 1971).

In determining what constituted the same offense for double jeopardy purposes, the supreme court has abandoned the “same-evidence” test in favor of an approach focusing upon the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes. If there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. McCracken v. State, 521 P.2d 499 (Alaska 1974); Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1498, 55 L. Ed. 2d 524 (U.S. 1978), overruled in part, Giacomazzi v. State, 633 P.2d 218 (Alaska 1981).

The basic interests sought to be vindicated or protected by the statutes include the nature of personal, property or other rights sought to be protected by the statutes. Jacinth v. State, 593 P.2d 263 (Alaska 1979).

To determine when two or more statutory violations amount to the same offense for double jeopardy purposes the trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interest of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected and the broad objectives of criminal law, such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes. Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987) (applying principles to charges of fellatio, sodomy, rape, and attempted rape of young males under former statutes).

E.Specific Application

Administrative action against defendant’s driver’s license, based on his refusal to submit to a breath test, did not preclude prosecution under a city ordinance for the crime of refusing to submit to the breath test. Aaron v. City of Ketchikan, 927 P.2d 335 (Alaska Ct. App. 1996).

Regulatory actions. —

As suspension of the appraiser’s license was regulatory, and not penal in nature, there was no violation of the prohibition against double jeopardy. Wendte v. State, 70 P.3d 1089 (Alaska 2003).

Variance between indictment and jury instructions. —

Although the indictment used the language of shooting with the intent to kill “and” wound and instructions to the jury followed the statutory language of shooting with intent to kill “or” wound, defendant received adequate notice of the charge against him, there was no ambiguity as to the incident involved, and he was in a position to claim double jeopardy if again charged with the offense of shooting with intent to kill or wound arising out of the incident. Christie v. State, 580 P.2d 310 (Alaska 1978).

Ambiguity as to whether sexual abuse counts were separate incidents. —

Separate sexual abuse counts alleging genital contact and digital penetration of the victim merged, where the record was ambiguous as to whether the counts arose at the same time and as a single incident, or whether two separate incidents occurred; therefore, defendant could be sentenced on only one of the two charges. Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988).

Two sexual acts performed in single sexual assault. —

Where defendant was convicted on separate sexual abuse counts alleging fellatio and masturbation, his conviction on the masturbation count was vacated in view of evidence showing that defendant could have performed the acts of fellatio and masturbation together as part of one continuous assault. Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988).

One statute, multiple victims. —

Double jeopardy did not prohibit defendant’s convictions for eight counts of assault in the third degree arising from a single act of arson. Hathaway v. State, 925 P.2d 1343 (Alaska Ct. App. 1996).

Merger of counts. —

Defendant’s convictions for sexual abuse of a minor in the second degree for digital penetration, sexual abuse of a minor in the third degree for touching the victim’s breasts, and sexual abuse of a minor in the second degree for cunnilingus merged, and he should have been sentenced only on a single count of sexual abuse of a minor in the second degree. Newsome v. State, 782 P.2d 689 (Alaska Ct. App. 1989).

Defendant’s convictions for sexually assaulting a twelve year old boy and sexually abusing the boy merged, where a single act of sexual penetration with a child could not properly support separate sentences and convictions for both offenses. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Because the description of the conduct underlying the attempted first-degree sexual assault substantially mirrored the description of the conduct underlying the second-degree sexual assault charge, and because the record was ambiguous as to whether defendant was convicted of separate counts based on the same underlying conduct, defendant’s convictions had to be merged. Natekin v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2011) (memorandum decision).

Double jeopardy principles did not require merger of defendant’s convictions for first-degree sexual assault and first-degree assault because the two offenses protect different societal interests: the right to be free from sexual penetration that is committed without consent and the right to be free from the unlawful infliction of serious physical injury. Artemie v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2011) (memorandum decision).

Trial court properly refused to merge defendant's sexual assault convictions where sufficient evidence supported both anal and vaginal penetration. Peter v. State, — P.3d — (Alaska Ct. App. Apr. 5, 2017) (memorandum decision).

Appellate court rejected defendant's argument that counts XXI and XII merged. There was no reasonable possibility that the jury convicted defendant twice for identical conduct. Bedwell v. State, — P.3d — (Alaska Ct. App. May 16, 2018) (memorandum decision).

Conviction of lesser included offense of felony, and misdemeanor. —

A defendant was not placed in double jeopardy by his conviction of the lesser included offense of reckless driving on a felony charge of assault with a dangerous weapon even though a misdemeanor charge of reckless driving had already been adjudicated against him because although the charges arose out of the same general incidents, they were based on different conduct during that incident. Calder v. State, 619 P.2d 1026 (Alaska 1980).

The statute prohibiting grand larceny was primarily aimed at the protection of property rights. Former AS 11.20.525 (a) was primarily aimed at protecting individuals from bodily injury or death. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Constitution allows separate convictions and punishments for felony murder and underlying felony. —

The Alaska Constitution allows separate convictions and punishments for felony murder and the underlying felony, even though, under Alaska’s cognate approach, the underlying felony may be a lesser included offense of felony murder. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

Separate convictions and punishments for homicide and underlying felony. —

Clearly Alaska law calls for separate convictions and punishments when the victim of the homicide is someone other than the victim of the underlying felony, as when a bystander or a police officer is killed during a robbery; but even when the defendant’s crimes involve only one victim, the Alaska legislature intended to authorize separate convictions and punishments for the underlying felony and the resulting homicide. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

From the legislative commentary to AS 11.41.115 , two things are apparent: first, even in the situation described in the statute (a burglary committed for the purpose of killing someone), when the felony-murder rule does not apply, the legislature still envisioned the defendant might be separately convicted of murder (first-degree murder) or manslaughter and the underlying burglary; second, because the legislature enacted a special provision to merge the two potential offenses in this specific situation, the legislature must have intended that defendants in other felony-murder situations would be subject to conviction and punishment for both the homicide and the underlying felony. Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994), aff'd, 917 P.2d 674 (Alaska 1996).

The single larceny rule is implicit in the spirit of Alaska’s constitutional protection against double jeopardy and is therefore adopted in Alaska. Nelson v. State, 628 P.2d 884 (Alaska 1981).

The applicability of the single larceny rule is limited to situations in which the prosecution has not proved separate intents to steal and sufficiently different acts of conduct to constitute separate offenses. Nelson v. State, 628 P.2d 884 (Alaska 1981).

Separate punishments for larceny. —

Where a janitor returned to the building where he was employed after his regular working hours and took items from two different offices at the same time, the door between the offices being unlocked, the acts involved the intent to steal from separate owners and the conduct of stealing separate items from each of the owners. Thus, there was a sufficient difference in intent and conduct so that separate punishments would not impose double jeopardy. Hunter v. State, 590 P.2d 888 (Alaska 1979), limited, Nelson v. State, 628 P.2d 884 (Alaska 1981).

Later discovered evidence. —

Defendant’s prior conviction for leaving the scene of an accident and his acquittal for failure to exercise care to avoid colliding with another vehicle did not bar his prosecution for operating a motor vehicle under the influence of intoxicating liquor because of double jeopardy since the state could not have discovered the evidence necessary to convict defendant of operating a motor vehicle under the influence of intoxicating liquor prior to his trial for leaving the scene and failing to avoid the accident in the exercise of due diligence. Miller v. State, 652 P.2d 494 (Alaska Ct. App. 1982).

Sentencing should be delayed until after indictment under former AS 12.55.050 filed. —

A trial court may only impose an enhanced penalty under former AS 12.55.050 [see now AS 12.55.125 ] where the sentence for the latest offense has not already been imposed. Therefore, sentencing should be delayed until the information or indictment under the habitual criminal statute has been filed. State v. Carlson, 560 P.2d 26 (Alaska 1977).

Sentence held constitutional. —

Where the trial court originally enhanced defendant’s sentence based on an aggravating factor which was held on appeal not to apply; on remand the trial court referred the case to the three-judge panel which then imposed a sentence which was less than defendant’s original sentence; and the three-judge panel’s sentence was based upon basically the same factors which the trial court had used to enhance defendant’s original sentence, although the sentence was greater than the presumptive term applicable to his offense, defendant’s sentence did not violate the prohibition against double jeopardy, did not violate his due process rights, and was not a product of prosecutorial or judicial vindictiveness. Kuvaas v. State, 717 P.2d 855 (Alaska Ct. App. 1986).

Defendant's indictment did not contain multiplicitous counts that required merger at sentencing given how the sexual abuse was characterized at trial and in the jury instructions. Brown v. State, — P.3d — (Alaska Ct. App. July 5, 2017) (memorandum decision).

A good time forfeiture proceeding, which does not increase the term of the original sentence, is an administrative proceeding at which jeopardy does not attach. Alex v. State, 484 P.2d 677 (Alaska 1971).

Accused was not subject to double jeopardy by the combination of the administrative forfeiture of 168 days of good time and a subsequent criminal prosecution for escape. Alex v. State, 484 P.2d 677 (Alaska 1971).

Enhancement of original sentence. —

Recommendation of local council on alcoholism that defendant who was convicted of driving while intoxicated serve 30 days in a residential alcohol treatment center constituted an illegal sentence, because the recommendation resulted from an improper delegation of the court’s sentencing authority and, in effect, amounted to an enhancement of defendant’s original sentence in contravention of the double jeopardy clause. Hester v. State, 777 P.2d 217 (Alaska Ct. App. 1989).

F.Specific Crimes

Furnishing alcohol and contributing to delinquency of minor. —

Trial court violated defendant’s double jeopardy rights by sentencing him for both contributing to the delinquency of a minor and for furnishing alcohol to a minor for the single act of furnishing alcohol to the minor, where defendant engaged in only a single criminal act which violated two separate statutes and which should have merged. Newsome v. State, 782 P.2d 689 (Alaska Ct. App. 1989).

Infraction is not offense for double jeopardy purposes. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Negligent driving was an infraction, not an offense for double jeopardy purposes, and pleading no contest to negligent driving did not preclude a subsequent prosecution for the offense of second-degree assault. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Restitution as a condition of probation not enforceable. —

A trial judge who imposed restitution as a special condition of probation under AS 12.55.100 and not as an independent portion of the defendant’s sentence under AS 12.55.045 , could not terminate the defendant’s probation and order her to serve the unserved time remaining on her original sentence while at the same time enforcing the restitution order without violating the constitutional protection against double jeopardy. If the judge wished to order the defendant to pay restitution independent of her conditions of probation, this had to be done at the time she originally imposed sentence. Kelly v. State, 842 P.2d 612 (Alaska Ct. App. 1992).

Attempted robbery and misdemeanor manslaughter. —

Conviction of both attempted robbery and misdemeanor manslaughter violates double jeopardy. Hughes v. State, 668 P.2d 842 (Alaska Ct. App. 1983), overruled, Todd v. State, 884 P.2d 668 (Alaska Ct. App. 1994).

The crimes of robbery, and of the use of firearms during the commission of a robbery, constituted the “same offense” for purposes of double jeopardy. Whitton v. State, 479 P.2d 302 (Alaska 1970).

The crimes of robbery and use of a firearm during the commission of robbery constituted the same offense for purposes of double jeopardy, and under such circumstances only one sentence was constitutionally permissible. Robinson v. State, 484 P.2d 686 (Alaska 1971).

In Whitton v. State , 479 P.2d 302 (Alaska 1970), the supreme court alluded to the fact that since the robbery was perpetrated by the use of a firearm the crime of robbery with a firearm was also committed. From this it was concluded that since the more serious offense already proscribes and punishes the activity of the less serious offense, the differences between the two offenses must be deemed insubstantial or insignificant in relation to the social interests involved. The result is that the two separate statutory crimes constitute the “same offenses” for purposes of double jeopardy. A single sentence was all that could properly be imposed under the double jeopardy provision of the Alaska Constitution. Robinson v. State, 484 P.2d 686 (Alaska 1971).

Second degree felony murder and first degree robbery. —

The double jeopardy clause of the Alaska Constitution does not separate convictions for second-degree (felony) murder and the predicate offense of first-degree robbery. Todd v. State, 917 P.2d 674 (Alaska), cert. denied, 519 U.S. 966, 117 S. Ct. 391, 136 L. Ed. 2d 306 (U.S. 1996).

Premeditated murder and felony murder are two separate theories constituting first-degree murder under former AS 11.15.010 . Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

Premeditated murder and felony murder require proof of different elements, and it is possible to be convicted of felony murder even though there is not enough evidence of premeditation to go to the jury on premeditated murder. Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

Where defendant was indicted on two counts, one for premeditated murder and one for felony murder, involving the same conduct, and the trial court granted a motion for judgment of acquittal on the premeditated murder count, defendant was not twice placed in jeopardy for the same offense when the court submitted the felony murder count to the jury. Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

Shooting with intent to kill and use of firearm. —

Shooting with intent to kill was a more serious crime than use of a firearm during an assault because of the specific intent element present in the former. But the intent and conduct involved in the former clearly encompassed the intent and conduct involved in the latter. The differences between the two crimes were insubstantial when judged in light of any social interest involved. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Misconduct involving weapons. —

Where defendant was charged on two counts of misconduct involving weapons alleging possession of the same weapon on different occasions, the state had the burden of proving beyond a reasonable doubt that the possession was not continuous; thus, where the state’s claim that possession was interrupted was at odds with its own theory of prosecution, and the jury was not instructed on the need to find defendant’s possession was interrupted at some point between the first and second offenses, double jeopardy barred judgment against defendant on more than one count. Simmons v. State, 899 P.2d 931 (Alaska Ct. App. 1995).

It was no error not to merge assault and weapons misconduct convictions because the first-degree assault statute concerned armed violence against individual victims resulting in serious harm, while the weapons misconduct statute concerned injury to one or more persons or property damage. Her v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

Firing at cabin and pickup. —

Separate punishment upon conviction of two counts of misconduct involving weapons in the second degree, and two counts of criminal mischief in the third degree, where the evidence established that defendant had fired a rifle at a cabin and a pickup truck did not violate the double jeopardy provisions of this section since there were sufficient and significant differences between the intent in the two firings. Leonard v. State, 655 P.2d 766 (Alaska Ct. App. 1982), overruled in part, Young v. State, 331 P.3d 1276 (Alaska Ct. App. 2014).

Second degree arson and manslaughter. —

Since the former second degree arson statute, AS 11.20.020, protected a property interest while the former manslaughter statute, AS 11.15.040, protected the paramount personal interest of protection of human life, they should have been considered separate offenses under the test of Whitton v. State, 479 P.2d 302 (Alaska 1970). Jacinth v. State, 593 P.2d 263 (Alaska 1979).

Merger of counts. —

Count charging that defendant made several specific false statements concerning his involvement in a car bombing merged with a general count which appeared to include specific statements which defendant was charged with in the other count, and therefore only one conviction could have stood. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Attempted murder, possession of explosives, and arson statutes differ markedly in the conduct which they prohibit and in the specific societal interests which they seek to preserve, and multiple sentences for the three offenses do not violate double jeopardy. Machado v. State, 797 P.2d 677 (Alaska Ct. App. 1990).

Arson and assault. —

Where defendant committed arson and in doing so placed other persons in danger of serious physical injury, double jeopardy did not preclude convictions for both arson in the first degree and assault in the third degree. Hathaway v. State, 925 P.2d 1343 (Alaska Ct. App. 1996).

Failure to stop, assist, and contact authorities. —

Separate convictions for failure to stop, failure to assist, and failure to contact the authorities do not violate double jeopardy. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Sexual assault and kidnapping are sufficiently distinct to warrant separate sentences without violation of double jeopardy, even when the assault and kidnapping are part of a single continuous transaction. Wilson v. State, 670 P.2d 1149 (Alaska Ct. App. 1983).

Convictions for kidnapping and sexual assault do not merge. Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991).

Rape, assault with a dangerous weapon, and kidnapping were separate crimes with separate elements. Lacy v. State, 608 P.2d 19 (Alaska 1980).

Rape and assault with intent to rape. —

Conviction and sentence on both charges of rape and assault with intent to commit rape violate the double jeopardy provision of the 5th amendment to the United States Constitution and this section. Tuckfield v. State, 621 P.2d 1350 (Alaska 1981); Tookak v. State, 648 P.2d 1018 (Alaska Ct. App. 1982).

Sexual assault of a minor. —

In an action for sexual abuse of a minor, penetration of separate orifices was not required to support separate sentences because this section demonstrated an intent to treat both changes in the manner of penetration and the penetrated orifice as separately punishable acts and thus, multiple convictions and sentences for distinct methods of penetration were not required to merge. State v. Thompson, 435 P.3d 947 (Alaska 2019).

Shooting and later cutting victim. —

Where the defendant shot the victim in the leg after having ordered him out of a car in which they were riding with another man and where the defendant then ordered the victim back in the car where, a short time later, defendant produced a knife and cut the victim’s throat and neck with it, these two incidents were separate offenses for purposes of this section. Nielsen v. State, 627 P.2d 1077 (Alaska 1981).

Promoting prostitution and managing prostitution enterprise. —

Punishment for inducing or causing a person under the age of 16 to engage in prostitution (former AS 11.66.110(a)(2) ) and for managing, supervising, controlling or owning a prostitution enterprise (AS 11.66.120(a)(1) ) did not violate double jeopardy since the offenses proscribed by the two statutes involve different intents and different conducts and differing societal interests are furthered. Bell v. State, 668 P.2d 829 (Alaska Ct. App. 1983).

DUI offenses. —

Forfeiture of a vehicle under a municipal ordinance declaring that any vehicle operated by an intoxicated driver, or any vehicle operated by a driver who refused to submit to a blood test, was subject to forfeiture as a “public nuisance,” was not “punishment” for purposes of double jeopardy. Davis v. Municipality of Anchorage, 945 P.2d 307 (Alaska Ct. App. 1997).

Refusal to take field sobriety tests. —

The government is not barred from introducing evidence of a motorist’s refusal to perform non-testimonial field sobriety tests. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

DUI and sobriety test refusal are separate offenses. —

To convict defendant of DWI, state had to prove that defendant was actually driving while intoxicated, but state did not have to prove that defendant was driving while intoxicated to convict him of breath test refusal, only that he was legally under arrest for DWI; therefore, DWI and refusing a breath or blood test were separate offenses permitting separate convictions and separate sentences. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

Drug offenses. —

Defendant’s double jeopardy rights were not infringed by the entry of separate convictions and sentences on charges of possession of cocaine with intent to deliver and knowingly maintaining a dwelling used for keeping or distributing cocaine, since the offenses differ markedly in the conduct that they prohibit and in the specific social interests that they seek to preserve. Davis v. State, 766 P.2d 41 (Alaska Ct. App. 1988), overruled in part, Rofkar v. State, 273 P.3d 1140 (Alaska 2012), overruled in part, Rofkar v. State, 305 P.3d 356 (Alaska Ct. App. 2013).

When defendant was convicted of violating AS 11.71.040(a)(3)(A), AS 11.71.050(a)(3)(A), and AS 11.56.375(a)(3) , the conviction of the drug possession offenses and the conviction of the contraband promotion offense did not violate double jeopardy prohibitions because these were separate crimes involving separate societal interests; moreover, one offense was not a lesser-included offense of another. Lampkin v. State, 141 P.3d 362 (Alaska Ct. App. 2006).

Where defendant was convicted for both possessing marijuana plants and maintaining a dwelling for keeping a controlled substance under AS 11.71.040 , the appeals court erred by failing to consider the merits of defendant’s double jeopardy claim because it was raised in his appellate brief. Rofkar v. State, 273 P.3d 1140 (Alaska 2012), overruled in part, Johnson v. State, 328 P.3d 77 (Alaska 2014).

Forgery offenses. —

Trial judge erred in concluding that misdemeanor forgery and obtaining a controlled substance by forgery are separate offenses which in an appropriate case permit separate sentences; the two offenses violate the same societal interest, namely the regulation of the availability of harmful drugs. Alley v. State, 704 P.2d 233 (Alaska Ct. App. 1985).

Assault with intent to rob and attempted robbery constituted the “same offense” for the purpose of sentencing. Brookins v. State, 600 P.2d 12 (Alaska 1979).

Consecutive sentences for burglary and malicious destruction of property were not permissible. Hensel v. State, 604 P.2d 222 (Alaska 1979) (decided under former AS 11.20.100 and 11.20.520).

Impermissible increase not found. —

Even though the judge who sentenced defendant for a robbery conviction intended that the robbery sentence be concurrent with whatever sentence defendant might receive upon revocation of probation for damaging an aircraft, imposing on revocation of probation a sentence for damaging an aircraft consecutively to the sentence for bank robbery did not impermissibly increase the robbery sentence. Tritt v. State, 625 P.2d 882 (Alaska Ct. App. 1981).

Burglary not in dwelling and larceny in building. —

Conviction for both the offense of burglary not in a dwelling house and the offense of larceny in a building or vessel did not violate the double jeopardy provisions of the United States and Alaska constitutions. Mead v. State, 489 P.2d 738 (Alaska 1971).

Conviction for grand larceny and removal of aircraft parts did not constitute double jeopardy. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Third degree theft and issuing a bad check. —

Defendant’s convictions for third degree theft and issuing a bad check merged because (1) the State had to prove defendant knew defendant’s account would lack sufficient funds when defendant’s check was presented for payment, so the two statutes protected the same societal value, and (2) the crimes were based on one act. Cohen v. State, — P.3d — (Alaska Ct. App. Nov. 4, 2015) (memorandum decision).

Offering and agreeing to receive bribe. —

A judge does not err in imposing consecutive fines for the separate offenses of offering a bribe and agreeing to receive a bribe. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983).

License revocation and prosecution for violations. —

Administrative license revocation is a “remedial” sanction, not a “punitive” sanction, for purpose of double jeopardy; therefore, the administrative revocation of defendants’ licenses was no impediment to their later prosecution for driving while intoxicated, refusing the breath test, or both. State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), limited, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Administrative revocation of a minor’s license to drive under AS 28.15.183 is not “punishment” for double jeopardy purposes; thus, a minor whose license was revoked under that section could still be prosecuted for the offense of minor consuming, AS 04.16.050 . Rexford v. State, 941 P.2d 906 (Alaska Ct. App. 1997), overruled, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Even if revocation of a minor’s driver’s license under AS 28.15.183 is unconstitutional, the minor is not immunized from prosecution for illegal use of alcoholic beverages under AS 04.16.050 ; the aggrieved minor’s remedy is to attack the license revocation. State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Alaska’s habitual criminal statute, former AS 12.55.050 , raised double jeopardy problems under the Alaska Constitution. State v. Carlson, 560 P.2d 26 (Alaska 1977).

Former AS 12.55.060 provided that when the trial court sentences a defendant under former AS 12.55.050 , it had to vacate the sentence originally imposed. This violated the rule articulated in Speidel v. State , 460 P.2d 77 (Alaska 1969), where the supreme court held that once a sentence has been meaningfully imposed it may not be later increased without offending the double jeopardy provision of the Alaska Constitution. Sonnier v. State, 483 P.2d 1003 (Alaska 1971).

Prosecution for perjury. —

A prosecutorial grant of immunity will not protect a witness from a prosecution for perjury if the witness testifies falsely. DeMan v. State, 677 P.2d 903 (Alaska Ct. App. 1984).

The constitutional protection against double jeopardy encompasses the collateral estoppel doctrine; however, where there were different episodes of perjury, a second indictment following the post-trial dismissal of the original indictment was not precluded. DeMan v. State, 677 P.2d 903 (Alaska Ct. App. 1984).

Defendant’s trial and conviction for perjury, after such perjury had been considered by the judge who had sentenced him following his earlier conviction for sexual abuse of a minor, did not violate the double jeopardy provision of this section, where the judge properly considered defendant’s perjury only as it related to his prospects for rehabilitation. Shannon v. State, 771 P.2d 459 (Alaska Ct. App. 1989).

Sentencing for first-degree robbery under former AS 12.55.125(c)(2) upheld. —

Although the use of a firearm in a robbery results both in the defendant’s having committed a more serious offense and the defendant’s facing a more serious sentence, the defendant has still only been punished once for that crime; sentencing a defendant for robbery in the first degree under the provisions of former AS 12.55.125(c)(2) does not violate the double jeopardy provisions of this section. Richardson v. State, 706 P.2d 1188 (Alaska Ct. App. 1985).

Aider and abettors. —

Nothing in the double jeopardy clause of the federal or state constitution forecloses putting a defendant to trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. State v. Kott, 636 P.2d 622 (Alaska Ct. App. 1981), aff'd, 678 P.2d 386 (Alaska 1984).

Concurrent sentencing for DUI and breath test refusal. —

District court violated the double jeopardy clause when, at defendant’s resentencing, it increased defendant’s composite sentence for driving under the influence (DUI) and breath test refusal under Anchorage, Alaska, Mun. Code 9.28.020A, 9.28.022.C, as it was discovered that defendant had an additional prior DUI conviction, because concurrent sentences were an option under municipal law; the district court could have imposed the mandated 60-day minimum sentences for DUI and breath test refusal without increasing defendant’s composite time to serve by making the 60-day sentences concurrent. Lampley v. Municipality of Anchorage, 159 P.3d 515 (Alaska Ct. App. 2007).

III.Self-Incrimination
A.In General

Right secured by 5th amendment and this section. —

The right not to be compelled in any criminal case to be a witness against oneself is secured by the 5th amendment of the United States Constitution and this section. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Similarity to 5th amendment to federal constitution. —

The provision of the 5th amendment to the federal constitution that no person “shall be compelled in any criminal case to be a witness against himself” is virtually identical with the language of the prohibition found in the section. Biele v. State, 371 P.2d 811 (Alaska 1962).

The drafters of the Alaska Constitution intended this section to guarantee protections commensurate with those then available under the fifth amendment to the United States Constitution.State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

The supreme court has interpreted this section more broadly than the United States supreme court has construed the 5th amendment. Scott v. State, 519 P.2d 774 (Alaska 1974).

The rights of one subject to custodial interrogation to be warned of his privilege to remain silent, of the fact that any statement made by him may be used against him, and of his right to the presence of counsel, have fundamental value and should be respected by law enforcement officers. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

Defendant has constitutional right to be silent. —

It is the constitutional right of the defendant, who is presumed to be innocent, to stand silent while the state attempts to meet its burden of proof, that is, to prove the defendant’s guilt beyond a reasonable doubt. Scott v. State, 519 P.2d 774 (Alaska 1974).

Police officer’s testimony that defendant refused to speak to the police about a jacket had little impact on defendant’s trial and was harmless beyond a reasonable doubt under the factors that a reviewing court considered when determining whether a court’s failure to address a prosecutor’s comments on a defendant’s silence was harmless error. Moreno v. State, 341 P.3d 1134 (Alaska 2015).

Warning to potential defendant appearing before grand jury. —

In order to protect the right of privacy and the right of a person to not be compelled to incriminate himself, the prosecution is required to give a target warning to a potential defendant who appears before a grand jury. Pinkerton v. State, 784 P.2d 671 (Alaska Ct. App. 1989).

Standing to assert violation of rights. —

A defendant has standing to assert the violation of a codefendant’s 5th amendment rights if he or she can show: (1) That a police officer obtained the evidence as a result of gross or shocking misconduct; or (2) That the officer deliberately violated a codefendant’s rights. Giel v. State, 681 P.2d 1364 (Alaska Ct. App. 1984), applying the standard in Waring v. State, 670 P.2d 357 (Alaska 1983).

Coerced statements are condemned because of the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

Statements which are the product of coercion may be unreliable and untrustworthy, and thus should be excluded as evidence against one coerced into making them. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

If inculpatory statements were involuntary because of the use of a kind of coercion which would repel civilized and decent men, the use of such statements to convict the person making the statement would violate due process. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

Police representations of harsher treatment did not constitute threatening statements. —

Where defendant admitted to police that he removed a handgun from the scene of a homicide, his privilege against self-incrimination was not violated. Police threats of harsher treatment did not constitute threatening statements under this provision; defendant’s will was not overborne by the detectives’ statements because he made his confession first. State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006).

Privilege pertains only to person from whom statement is obtained. —

The privilege against self-incrimination pertains solely to the person who makes a statement under impermissible conditions where the statement is to be used to convict him, and not some other person. The right is personal in nature — it pertains only to the person from whom a statement is obtained. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The privilege against self-incrimination does not require the exclusion of evidence against one not making any statement in order to protect the rights of the person from whom a statement was obtained in violation of the Miranda rule. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The privilege against self-incrimination is a personal one; although the accused is protected from compulsion to incriminate himself, the constitutional provisions do not proscribe incriminating statements elicited from another. In re Cornelius, 520 P.2d 76, 521 P.2d 497 (Alaska 1974), aff ’d, In re Cornelius, 521 P.2d 497 (Alaska 1974).

Whether the use of coerced statements from another to convict one who did not make the statements would violate due process may involve considerations different from those involved in the privilege against self-incrimination. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The privilege is to be silent; it is not a privilege to commit crime. Webb v. State, 580 P.2d 295 (Alaska 1978).

Privilege extends to answers furnishing link in evidence leading to conviction. The privilege extends not only to answers that would in themselves support a conviction but also to those which might furnish “a link in the chain of evidence” leading to a conviction. McConkey v. State, 504 P.2d 823 (Alaska 1972); Scott v. State, 519 P.2d 774 (Alaska 1974); Evans v. State, 550 P.2d 830 (Alaska 1976).

The privilege against self-incrimination applies where the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

It is enough to justify invocation of the privilege against self-incrimination (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case. McConkey v. State, 504 P.2d 823 (Alaska 1972).

The privilege against self-incrimination extends only to testimonial evidence. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Defendant’s right to silence was not violated by a criminal sentence requiring him to write an essay on the ills of prostitution upon his conviction of the offense. Parrott v. Municipality of Anchorage, 69 P.3d 1 (Alaska Ct. App. 2003).

There is no constitutional bar to the government introducing evidence of a motorist’s refusal to perform non-testimonial sobriety tests, since such refusal is conduct from which one may draw an incriminatory inference. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Hearing on entrapment defense. —

Trial court erred in denying defendant’s request for a hearing on the defense of entrapment on the ground that defendant had not submitted evidence supporting the elements of entrapment because defendant had given notice of the intent to rely on the defense, as required by Alaska R. Crim. P. 16(c)(5); an affidavit from defendant would have required defendant to testify regarding aspects of the controlled substance transaction in violation of defendant’s right against self-incrimination. Marshall v. State, 238 P.3d 590 (Alaska 2010).

The claim of privilege must be allowed. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Unless it is perfectly clear that the witness is mistaken. McConkey v. State, 504 P.2d 823 (Alaska 1972).

And that the answers cannot possibly have such tendency to incriminate. McConkey v. State, 504 P.2d 823 (Alaska 1972).

But the apprehension of self-incrimination must be shown to be real. McConkey v. State, 504 P.2d 823 (Alaska 1972).

The witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself. The court must evaluate the hazard, the witness somehow showing enough to indicate a basis for fear of incrimination while withholding facts which would prove it. McConkey v. State, 504 P.2d 823 (Alaska 1972).

A witness may not refuse to testify where there is no real or substantial hazard of incrimination; the witness is not excused from answering merely because he declares that in so doing he would incriminate himself. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

Potential hazard explained. —

The privilege is applicable only where incarceration or other sanctions that are criminal in nature are a potential hazard. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

The privilege against self-incrimination is concerned with the danger to a witness forced to give testimony leading to the inflicting of penalties affixed to the criminal acts, and a witness may not refuse to testify upon a claim of 5th amendment privilege where there is no real or substantial hazard of incrimination. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

The possible consequences of proceedings brought under former paragraphs (3) or (6) of AS 47.10.010(a) as it existed prior to its 1977 amendment and former paragraphs (3) or (7) of AS 47.10.290 did not give rise to a right against self-incrimination, since none of these provisions subjected a violator to incarceration or other sanctions criminal in nature. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

Since certain forms of sexual conduct or the exposure of one’s person or private parts were made criminal by former AS 11.40.080 (providing for crimes against morality and decency, see now AS 11.51 and AS 11.61) and § 6.401 of the Fairbanks General Code (of municipal ordinances), a person would have a constitutional right not to testify regarding any matter that might tend to show that she has violated one of those provisions. E. L. L. v. State, 572 P.2d 786 (Alaska 1977).

Unfounded fear. —

The privilege is improperly invoked where any fear of self-incrimination is unfounded. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Where the peril asserted by one claiming the privilege against self-incrimination was incrimination under former AS 11.10.070, soliciting another to commit a crime, yet no responsive answer could have directly established any element of that offense, nor yielded information useful to the state in a prosecution for violation of former AS 11.10.070, the claimed hazard was fanciful. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Claiming privilege after earlier speaking. —

The fear that the claim of privilege may be spurious is not academic. Because of bribe, threat, or purpose to aid another, a witness who speaks once may later assert the privilege in order to cloak nothing but a refusal to speak the truth. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Showing necessary to sustain the privilege. —

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous or might result in injurious disclosure. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Understanding of rights. —

Trial judge found that the police officer read defendant his rights and that defendant responded that he understood those rights, and defendant volunteered information that the officer had not requested; the judge concluded from the circumstances of the interview that defendant was cooperative, and the record supported the trial judge’s conclusion that a knowing and intelligent waiver of Miranda rights could be inferred from defendant’s actions and words. Olson v. State, 262 P.3d 227 (Alaska Ct. App. 2011).

Incriminating statements not product of custodial interrogation. —

Incriminating statements made by an already incarcerated defendant in a telephone conversation with his girlfriend and monitored by police officers were not elicited in violation of the defendant’s right against self-incrimination, given that the statements were not the product of coercion resulting from the interaction of custody and official interrogation. Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992).

Judge cannot be skeptical. —

In determining whether a witness really apprehends danger in answering a question, a judge cannot permit himself to be skeptical; rather he must be acutely aware that in the deviousness of crime and its detection, incrimination may be approached and achieved by obscure and unlikely lines of inquiry. McConkey v. State, 504 P.2d 823 (Alaska 1972).

Burden of proving voluntariness of confession is on state. —

The burden of proving that a confession is voluntary is one which the state must assume when the admissibility of a confession is questioned on the grounds that it was coerced; only by producing all the material witnesses connected with the controverted confession can the state discharge this burden. The filing of affidavits in lieu of producing witnesses simply will not suffice. Adams v. State, 704 P.2d 794 (Alaska Ct. App. 1985).

Confession following defendant’s attempt to terminate interrogation. —

Where defendant unambiguously invoked his right to remain silent, and the police interrogator failed to scrupulously honor the request, his subsequent confession was properly suppressed. Nothing in the circumstances surrounding defendant’s declaration — “well, I’m done talkin’ then” — in his apparent motives (fear of retaliation) for making the declaration, or in the declaration itself gave the investigator any reasonable basis to think that defendant was not making “a final decision” or that he was trying to do anything other than what he expressly declared that he wanted to do, to cut off the questioning entirely. Munson v. State, 123 P.3d 1042 (Alaska 2005).

Preliminary hearing. —

Where accused invoked fifth amendment and refused to testify in response to some questions in a preliminary hearing, the court was to consider responses to other questions but weigh fact that accused could not have been cross-examined fully. Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983).

Extensive pretrial prosecutorial discovery prohibited. —

The privilege against compelled self-incrimination under the Alaska Constitution prohibits extensive pretrial prosecutorial discovery in criminal proceedings. Scott v. State, 519 P.2d 774 (Alaska 1974).

Criminal Rule 16(c), as amended in 1996, requiring defendants to provide the state with pretrial discovery of names, addresses, phone numbers, and statements of potential defense witnesses, violated this section. State v. Summerville, 926 P.2d 465 (Alaska Ct. App. 1996), aff'd, 948 P.2d 469 (Alaska 1997).

Because the reciprocal discovery provisions enacted in Criminal Rule 16 in 1996 were nonseverable, and at least one of the provisions violated this section, the entire rule was invalid and the preexisting version of the rule remained in effect. State v. Summerville, 948 P.2d 469 (Alaska 1997).

The stage of the proceedings is irrelevant to the analysis of this constitutional privilege. Scott v. State, 519 P.2d 774 (Alaska 1974).

The fundamental right not to incriminate one’s self should apply at every stage of criminal inquiry or proceedings regardless of judge-made exclusionary or evidentiary rules. Scott v. State, 519 P.2d 774 (Alaska 1974).

Criminal and civil discovery compared. —

See Scott v. State, 519 P.2d 774 (Alaska 1974).

Historical development of criminal discovery in the context of federal privilege against self-incrimination. See Scott v. State, 519 P.2d 774 (Alaska 1974).

Written or recorded statements are “testimonial” or “communicative” in nature. Scott v. State, 519 P.2d 774 (Alaska 1974).

Three-fold test whether disclosure of defenses may undermine privilege. —

The principles the supreme court follows in deciding whether or not compelled disclosure of defenses may undermine the privilege against self-incrimination involve a three-fold test: Is the evidence testimonial; is it incriminating; and is it compelled? Scott v. State, 519 P.2d 774 (Alaska 1974).

Order for list of defense witnesses’ names impermissible. —

A court’s discovery order is in a large part constitutionally impermissible where it directs a defendant to produce “the names and addresses of all prospective defense witnesses, other than the defendant himself,” including “the names of alibi witnesses upon whom he intends to rely.” Scott v. State, 519 P.2d 774 (Alaska 1974).

Since the production of a list of names and addresses of witnesses is testimonial in nature, incriminating, and compelled by a court’s discovery order, that portion of the order violates petitioner’s privilege against self-incrimination under this section. Scott v. State, 519 P.2d 774 (Alaska 1974).

As is order for production of witnesses’ written statements. —

Where a discovery order commands the production or inspection and copying of any written or recorded statements in defendant’s possession of prospective defense or government witnesses, the witness statements are being “compelled” in a constitutional sense and therefore that portion of the order is unconstitutional under this section. Scott v. State, 519 P.2d 774 (Alaska 1974).

And order for production of alibi information. —

The portion of a superior court’s order which commands the production of alibi information concerning the place or places the accused claims to have been offends defendant’s privilege against self-incrimination. Scott v. State, 519 P.2d 774 (Alaska 1974).

Information going to alibi is “communicative” or “testimonial”; the information is verbal rather than physical, direct rather than indirect, and immediately cognizable. Scott v. State, 519 P.2d 774 (Alaska 1974).

Alibi information commanded by a discovery order is “compelled” in a constitutional sense from defendant. Scott v. State, 519 P.2d 774 (Alaska 1974).

Order for advance notice of alibi defense is permissible. —

The advance notice of an alibi defense is in the nature of any pretrial plea, much like a plea of “not guilty.” There is nothing incriminating about this inquiry. Accordingly, the portion of the superior court’s discovery order which calls upon petitioner to furnish respondent with advance notice of an alibi defense does not violate this section. Scott v. State, 519 P.2d 774 (Alaska 1974).

“Meritorious defense” notice requirement. —

“Meritorious defense” requirement to set aside a default judgment under Cr. R. 8(i) appears not to infringe the privilege against self-incrimination under this provision, at least to the extent that the “meritorious defense” rule merely requires defendant to give advance notice of his general theory of defense to his speeding charge. Case v. Municipality of Anchorage, 128 P.3d 193 (Alaska Ct. App. 2006).

Prosecutors can compel testimony by granting immunity. —

Prosecutors had the inherent authority, even in the absence of enabling legislation, to grant immunity and to use that grant to compel testimony which would otherwise have been protected by the privilege against self-incrimination. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A promise of immunity by a state prosecutor and court may be used to compel testimony from a witness in a criminal proceeding, despite the witness’s claim of the privilege against self-incrimination. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Witness who was granted immunity under AS 12.50.101 could not refuse to testify; a witness cannot assert the privilege against self-incrimination based on the possibility that the State will disbelieve his testimony and prosecute the witness for committing perjury during the immunized testimony. Dan v. Dan, 288 P.3d 480 (Alaska 2012).

Promise of immunity is binding. —

As a matter of both federal and state due process, a prosecutor’s promise of immunity made in return for a surrender of the privilege against self-incrimination is binding on the prosecution. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s grant will serve to bind the state to whatever promise is made, i.e., to use and derivative use and/or transactional immunity, even in other judicial districts. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

A state prosecutor’s promise of use and derivative use immunity will also bind the federal government, under the ruling in Murphy v. Waterfront Comm’n of N.Y. Harbor , 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). However, a state grant of transactional immunity will require independent endorsement from federal authorities before it will absolutely preclude a federal prosecution.

If a prosecutorial promise of immunity is made, whether or not it is statutorily authorized, it cannot be breached without allowing the promisee an opportunity to reconsider and revoke his part of the bargain. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

If a grand jury seeks, under AS 12.40.070 , to compel a prosecutor to override a prior immunity grant, any resulting indictment is to be dismissed with prejudice. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

The drafters of this section intended the privilege against self-incrimination to be supplanted only by a grant of transactional immunity. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

Witness immunity statute unconstitutional. —

Alaska’s witness immunity statute (AS 12.50.101 ) violates the Alaska Constitution’s privilege against self-incrimination. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

Witness privilege versus right to cross-examination. —

Conflict between witness’ privilege against self-incrimination and accused’s right of effective cross-examination. See Lemon v. State, 514 P.2d 1151 (Alaska 1973); Thomas v. State, 522 P.2d 528 (Alaska 1974).

Hearsay testimony of an alleged accomplice’s statements, when the declarant was not available for effective cross-examination due to the privilege against self-incrimination, was held not admissible. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Trial judge to accommodate these rights to extent possible. —

The privilege against self-incrimination is in constant conflict with an accused’s right to present an effective defense. A trial judge should endeavor to accommodate those rights to the fullest extent possible and, in certain cases, should explore the basic validity of a witness’ claim to the privilege out of the presence of the jury. Evans v. State, 550 P.2d 830 (Alaska 1976).

Extent to which defense counsel can accomplish his objectives without infringing on the witness’ privilege. See Thomas v. State, 522 P.2d 528 (Alaska 1974).

Inference of guilt may not be drawn from failure to speak or to explain when a person has been arrested. Davis v. State, 501 P.2d 1026 (Alaska 1972); Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

The supreme court disapproves of any comment absent waiver by the prosecution on an accused’s silence resulting from the exercise of his constitutional rights. Davis v. State, 501 P.2d 1026 (Alaska 1972); Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

Implicit in the right not to be compelled in any criminal case to be a witness against oneself is the notion that when an accused person chooses to exercise his right to silence, such silence may not be commented upon. Coleman v. State, 553 P.2d 40 (Alaska 1976).

An accused’s privilege against self-incrimination is violated where comment is made at trial concerning his failure to testify on his own behalf. Armstrong v. State, 502 P.2d 440 (Alaska 1972).

Due process is violated when the prosecution calls attention to the silence of the accused at the time of arrest. Stork v. State, 559 P.2d 99 (Alaska 1977).

Evidence of defendant’s pre-arrest silence. —

Questions or comments by the State of Alaska about a defendant’s pre-arrest silence are generally inadmissible under Alaska R. Evid. 403 and questions or comments by the State on a defendant’s post-arrest silence are prohibited by Alas. Const. art. I, § 9. Moreno v. State, 341 P.3d 1134 (Alaska 2015).

Prosecutor’s indirect comment on failure to testify held harmless error. —

Prosecutor’s error in commenting during closing argument, that two people knew what had happened on the night in question, and only one of them, the victim, had testified, was harmless beyond a reasonable doubt because the harm from the prosecutor’s comment, which was brief, isolated, and oblique, was cured by the jury instructions on defendant’s right not to testify before and after the comment. Goldsbury v. State, 342 P.3d 834 (Alaska 2015).

Bound by counsel’s waiver of rights. —

But a client is bound by his attorney’s decisions made during the course of trial to waive his constitutional rights for strategic or tactical reasons. Davis v. State, 501 P.2d 1026 (Alaska 1972).

Defendant waived any constitutional objection to prosecution’s remarks on her failure to speak at the time of arrest, where the issue of her comment at the time of her arrest was raised by her own counsel. Davis v. State, 501 P.2d 1026 (Alaska 1972).

Test as to comment on failure of defendant to testify. —

It is concededly improper and reversible error to comment on the failure of a defendant to testify in his own behalf, and the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. McCracken v. State, 431 P.2d 513 (Alaska 1967); Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Prosecutor did not comment on accused’s failure to testify. —

Where challenged statements of a prosecutor in his closing remarks were neither calculated to be, nor of necessity interpreted by the jury as, a comment on appellant’s failure to testify, the circumstance that appellant had not taken the stand could not prohibit the state from commenting on evidence which appellant might have cast doubt on had he testified. Armstrong v. State, 502 P.2d 440 (Alaska 1972).

Neither the prosecutor’s argument concerning the credibility of defendant’s out-of-court statement nor his ensuing mention of defendant’s right to refrain from testifying amounted to an impermissible comment on defendant’s constitutional right to silence. Hill v. State, 902 P.2d 343 (Alaska Ct. App. 1995).

Comment on failure to testify is “plain error”. —

Since a comment on the choice of the accused not to testify could result in an infringement on the accused’s rights, the potential error affects substantial rights, satisfying the requirements for “plain error” so as to permit review of the issue on appeal. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Inquiry whether statements made permissible. —

The district attorney did not commit reversible error in grand jury proceedings by inquiring of the police officer who had arrested defendant whether defendant had made any statement after arrest. Coleman v. State, 553 P.2d 40 (Alaska 1976).

A prosecutor’s comment, in the rebuttal portion of his closing argument, that the jury should infer guilt from the fact that defendant remained silent between the time of his arrest and the time he was advised of his Miranda rights, a span of about eight minutes, was cognizable under the “plain error” rule embodied in Cr. R. 47(b) and was not harmless beyond a reasonable doubt. Dorman v. State, 622 P.2d 448 (Alaska 1981).

Prosecutor’s statement (“I can’t prove what you were thinking unless you come out and tell me yourself”) was not an impermissible comment on defendant’s failure to testify because the prosecutor was responding directly to the defense attorney’s argument that the State had the burden of proving defendant’s “specific intent in his head.” Jaime v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Balancing test prerequisite to questioning as to silence. —

Where a trial court permitted questions concerning defendant’s silence without first determining whether the probative value of the challenged line of inquiry was outweighed by its potential for prejudicial impact, the court’s failure to balance probative value against prejudicial impact amounted to plain error, requiring reversal of defendant’s conviction of murder and kidnapping. Silvernail v. State, 777 P.2d 1169 (Alaska Ct. App. 1989).

Admission of evidence of flight. —

Admission of evidence concerning defendant’s flight from the crime did not violate his right against self-incrimination. Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983).

Pointing out inconsistencies in defendant’s exculpatory statement. —

Where defendant purported to have given a rather complete statement of what had occurred, omissions and inconsistencies in his exculpatory statement could properly have been pointed out at trial. Sidney v. State, 571 P.2d 261 (Alaska 1977).

Use of prior criminal conviction to impeach defendant’s credibility does not deny him equal protection of the law, does not violate the privilege against self-incrimination, and does not deprive him of a fair and impartial jury. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Instructions to jury to cure improper prosecutorial commentary on witness’s refusal to testify. See Graham v. State, 656 P.2d 1192 (Alaska Ct. App. 1982).

Where trial court knew in advance of a witness’s intended refusal to answer questions, holding the attempted questioning out of the jury’s presence was not error. Williams v. State, 600 P.2d 1092 (Alaska 1979).

Use in presentence report of information concerning defendant’s post-conviction conduct did not violate his privilege against self-incrimination, since he was not compelled to be a witness against himself. Morgan v. State, 598 P.2d 952 (Alaska 1979).

Waiver of privilege. —

The subnormal intelligence of an accused is certainly relevant in determining whether there has been a knowing, voluntary and intelligent waiver of the privilege against self-incrimination. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Excluding subsequent confessions when first one is involuntary. —

Where successive confessions are obtained as part of a continuous process, courts have usually excluded all when the first confession is deemed to have been given involuntarily. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Effect of Cr. R. 6(r) in grand jury proceedings. —

Criminal R. 6(r), relating to the presentation of hearsay evidence to the grand jury, would not seem to prohibit the admission of evidence of defendant’s silence after arrest on the sole ground that such evidence would not be admissible at trial. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Test for error. —

Where the constitutional rights to remain silent and to the assistance of counsel are involved, any error must be harmless beyond a reasonable doubt. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

B.Specific Application

Where attorney left incriminating documents in custody of partner. —

In a disciplinary proceeding against an attorney, where the attorney left incriminating documents in the custody of his partner, who voluntarily turned them over to the Bar Association, there can be no application of the privilege. In re Cornelius, 520 P.2d 76, 521 P.2d 497 (Alaska 1974), aff ’d, In re Cornelius, 521 P.2d 497 (Alaska 1974).

Applicability to Alaska R. Evid. 412. —

To the extent that Alaska R. Evid. 412 allows the government to impeach a testifying defendant with statements obtained as a result of an intentional or an egregious Miranda violation, the rule is unconstitutional; Rule 412 is constitutional to the extent that it authorizes the government to impeach a testifying defendant with statements obtained as a result of Miranda violations that are neither intentional nor egregious. State v. Batts, 195 P.3d 144 (Alaska Ct. App. 2008).

Refusal to take breathalyzer test. —

A refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the state or federal privilege against self-incrimination. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Production of driver’s license. —

The privilege against self-incrimination does not extend to the requirement that motorists produce a driver’s license, despite speeding defendant’s assertion that requiring him to present his license when he was stopped violated his privilege against compulsory self-incrimination because it identified him for the purpose of prosecution. Collier v. Municipality of Anchorage, 138 P.3d 719 (Alaska Ct. App. 2006).

Appellant’s admission that he was driving vehicle in question at time of accident was not inadmissible under the fifth amendment to the United States Constitution and Alaska Const., art. I, § 9 as being compelled by AS 28.35.080 , since this section does not require any incriminating information, but merely requires a person who is involved in an accident covered by the statute to give notice of the accident to the appropriate police department. Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983).

Claiming privilege on income tax return. —

If truthful answers to particular questions on an income tax return would tend to incriminate the individual, then the privilege against self-incrimination can be validly claimed as to those questions in a prosecution for failure to file. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Admissibility of pre-Miranda warning statements. —

Trial court did not err in denying defendant’s motion to suppress his statements because he did not make any significantly incriminating statements prior to being given Miranda warnings and police officer’s subsequent full advisement of Miranda warnings was sufficient. Stock v. State, 191 P.3d 153 (Alaska Ct. App. 2008).

Failure to file return to avoid disclosure of incriminating material. —

The privilege against self-incrimination may be validly claimed in a prosecution for failure to file a tax return in order to avoid answering particular questions on a tax return if the answers to those questions would tend to incriminate an individual. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

A person may claim his privilege against self-incrimination by specific answers to selected individual questions on tax return. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Privilege does not mean right to refuse to file. —

The privilege against self-incrimination does not extend to a right to refuse to file any income tax return at all. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981); Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

What constitutes refusal to file tax return. —

A blanket refusal to disclose any financial information on a tax return based on the privilege against self-incrimination is equivalent to filing no return at all. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981); Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

Partnership records held in representative capacity. —

An individual cannot rely upon the privilege of Alaska Const., art. I, § 9 to avoid producing partnership records which are in his possession in a representative capacity. Pratt v. Kirkpatrick, 718 P.2d 962 (Alaska 1986).

Private security guard not acting as an agent of police need not give Miranda warnings prior to interrogating a suspect he has placed under a citizen’s arrest. Metigoruk v. Municipality of Anchorage, 655 P.2d 1317 (Alaska Ct. App. 1982).

Deceit by officers. —

Statement of confession detailing sexual acts committed by a defendant arrested for two counts of first-degree sexual assault, AS 11.41.410(a)(1) , and two counts of second-degree sexual abuse of a minor, AS 11.41.436 , was taken involuntarily. During a custodial interrogation, police promised the defendant that the statement would be “off the record”; court erred in admitting the statement at trial. Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003).

Not all improper police conduct triggers the per se rule or the presumption that a statement is involuntary. An officer’s deceit is merely one factor to consider in the totality of the circumstances. Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003).

Grant of federal immunity did not bar state prosecution. —

Where defendant had been granted use and derivative use immunity in a federal drug conspiracy prosecution arising from a homicide, state prosecution for homicide was not barred by the state constitutional guarantee against compulsory self-incrimination. State v. Schwin, 938 P.2d 1101 (Alaska Ct. App. 1997).

Deliberate eavesdropping on attorney-client communications violates section. —

Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Prosecution’s comments and elicitation of testimony before the grand jury indicating that, following his arrest, defendant expressly asserted his constitutional rights to remain silent and to appointment of counsel, were impermissible but did not appreciably affect the grand jury’s proceedings, and therefore the error was harmless. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Earlier testimony of attorney in disciplinary proceeding introduced at trial. —

In a disciplinary proceeding against an attorney, the introduction of excerpts of the attorney’s testimony before the investigating committee at the trial committee is lacking in the necessary element of compulsion, since the attorney had voluntarily testified before the investigating committee. In re Cornelius, 520 P.2d 76, (Alaska 1974), aff ’d, In re Cornelius, 521 P.2d 497 (Alaska 1974).

Psychiatric testimony. —

Under some circumstances a psychiatrist’s testimony at trial as to statements made by a defendant during a psychiatric interview may violate that defendant’s privilege against self-incrimination. Schade v. State, 512 P.2d 907 (Alaska 1973).

Where a defendant has injected no psychiatric issue into the case, an order compelling him to submit to examination, which would include discussion of the alleged criminal event, would violate his 5th amendment privilege against self-incrimination. Schade v. State, 512 P.2d 907 (Alaska 1973).

Constitutionality of psychiatrist’s testimony where defendant’s insanity defense, raised as an issue by himself, was the key issue in the case. See Schade v. State, 512 P.2d 907 (Alaska 1973).

Where on direct and re-direct examination in a murder prosecution, the testimony of a psychologist who examined defendant shortly after he was arrested was carefully limited to a description of defendant’s conduct at the time of the interview and to the psychologist’s conclusions regarding his mental status at that time, the conclusions being based on the psychologist’s observations and on defendant’s responses to verbally administered questions which were designed to test his mental faculties and which were unrelated to the crime, the evidence elicited from the defendant was of the nature of “real” or nontestimonial evidence to which the right against self-incrimination does not attach. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Compelling a juvenile to submit to a psychiatric evaluation for the purpose of determining his amenability to treatment as a child was reversible error, where admission of the psychiatric evidence against him at a waiver of juvenile jurisdiction hearing helped to pave the way for the state to prosecute him for murder as an adult, thereby exposing him to potential punishment far more severe than could otherwise have been visited upon him. R.H. v. State, 777 P.2d 204 (Alaska Ct. App. 1989).

Competency hearing. —

Requiring defendant who had been charged with two counts of second degree assault to testify at his competency hearing would violate his right not to take the stand against his will. A competency hearing is a part of a “criminal proceeding” under this provision. Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012).

Psychotherapist-patient privilege in child protection cases. —

Discussion of self-incrimination problems which would arise if the court of appeals were to hold that a patient loses the psychotherapist/patient privilege in a subsequent criminal proceeding by cooperating in court-ordered psychotherapy in a child protection proceeding. See State v. R.H., 683 P.2d 269 (Alaska Ct. App. 1984).

Statements made during sex offender therapy while defendant was incarcerated at a youth facility were admissible at his sentencing since counselors were not required to give him Miranda warnings before the therapy sessions, and the statements were not obtained in violation of defendant’s privilege against self-incrimination. Beaver v. State, 933 P.2d 1178 (Alaska Ct. App. 1997).

Statements following defendant’s attempt to terminate interrogation. —

Although there were several problematic aspects of police officer’s renewed interview with defendant in a holding cell after defendant had exercised his right to refuse to answer questions, defendant’s statements were admissible because officer scrupulously honored defendant’s right to cut off questioning since: (1) When the officer came to defendant’s holding cell, he asked defendant for permission to enter, and defendant consented; (2) Even though officer did not repeat the full set of Miranda warnings, defendant was reminded of his right to remain silent; (3) Officer questioned defendant in the same manner as earlier interview, allowing defendant to decide whether he would answer each of officer’s inquiries; and (4) Defendant agreed to that manner of questioning. Stock v. State, 191 P.3d 153 (Alaska Ct. App. 2008).

Permitting testimony relating to prior acquittal. —

Testimony pertaining to sodomy, for which defendant had been acquitted, was permissible, since the evidence was relevant to a lewd and lascivious conduct charge, and in the context of the case, its prejudicial impact was outweighed by its probative value. Piesik v. State, 572 P.2d 94 (Alaska 1977).

State employee's self-incrimination privilege not violated. —

By terminating a corrections employee for refusing to answer questions from investigators, the State of Alaska did not violate his privilege against self-incrimination, under either the U.S. Constitution or Alaska Const. art. I, § 9, where the State had notified him that his answers could not be used against him criminally, and the employee not only confirmed at the time that he understood this notification, but also in the subsequent court proceedings introduced no evidence to the contrary. Wilson v. State, 478 P.3d 1217 (Alaska 2021).

Silence used to rebut evidence or show inconsistencies. —

Cross-examination as to defendant’s refusal to give information to police during the investigation of his murder charge, when he testified at trial to those matters, was a permissible attempt to rebut defendant’s testimony as to his cooperativeness and to point out prior inconsistent statements, and did not constitute a prosecutorial comment on his right to remain silent. Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982), rev'd, 682 P.2d 1119 (Alaska 1984).

Defendant’s silence after arrest upon being asked by friend why he had not reported shooting to police was inconsistent with his pre-arrest statement to another friend that he had called police; thus, defendant’s silence was relevant to establish making of a prior false exculpatory statement and to show inconsistencies in defendant’s statements following the shooting. Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982).

Reference in state trooper’s testimony to defendant’s decision to remain silent, which was neither directly elicited by the prosecutor’s questioning nor mentioned in prosecutor’s final argument, did not constitute plain error requiring reversal of defendant’s conviction. Van Hatten v. State, 666 P.2d 1047 (Alaska Ct. App. 1983).

Parolee’s right to present defense at revocation hearing. —

Where a parolee is faced with revocation of parole prior to a criminal trial on the same charges, in the interests of fairness, the parolee should not be forced to choose between remaining mute at the revocation proceeding, thereby surrendering his right to present a defense, or testifying at the revocation hearing and incurring the possibility of incriminating himself. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and a criminal trial based upon the same conduct, upon timely objection, any evidence or testimony presented by the parolee at his revocation hearing is inadmissible by the state in subsequent criminal proceedings. This exclusionary rule applies equally to the fruits of the parolee’s prior revocation hearing, in order to remove completely any illegitimate incentive to schedule revocation hearings in advance of trial. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Where a parolee is faced with both revocation and criminal trial based on the same conduct, the parolee must be advised prior to revocation proceedings that any evidence or testimony offered by him at the revocation proceedings may not be admitted against him at a subsequent trial on the underlying offense. McCracken v. Corey, 612 P.2d 990 (Alaska 1980).

Court erred in failing to advise a father of his privilege against self-incrimination pursuant to former Children’s Rule 12(e)(3) (see now Delinquency Rules 14). In re P.N., 533 P.2d 13 (Alaska 1975).

Assertion of self-incrimination privilege in civil processing.

Driver, who pleaded guilty to second-degree murder, could assert the privilege against self-incrimination in a civil proceeding because the decision on his pending sentence appeal could require a new sentencing proceeding where his compelled testimony in the civil proceeding could be used to his disadvantage; if the driver's appeal from his sentence was successful, there was a significant possibility that compelled testimony could be considered by a resentencing court. Graham v. Durr, 433 P.3d 1098 (Alaska 2018).

Defendants appealing only sentences may invoke privilege against self-incrimination.

Defendants appealing only their sentences, like defendants appealing their convictions, may invoke the privilege against self-incrimination until their convictions become final; therefore, a driver, who pleaded guilty to second-degree murder, could continue to exercise his privilege against self-incrimination during the pendency of his direct appeal. Graham v. Durr, 433 P.3d 1098 (Alaska 2018).

Ripeness.

Question whether a driver could invoke his privilege against self-incrimination during post-conviction proceedings was not ripe, and the supreme court declined to address it, because the driver had not yet attempted to assert the privilege against self-incrimination during post-conviction proceedings. Graham v. Durr, 433 P.3d 1098 (Alaska 2018).

Constitutionality of criminal nonsupport statute. —

The criminal nonsupport statute does not require a defendant to prove the absence of a lawful excuse or to incriminate himself. Taylor v. State, 710 P.2d 1019 (Alaska Ct. App. 1985).

Collateral references. —

21 Am.Jur.2d Criminal Law, § 269 et seq.; 21 Am.Jur.2d, Criminal Law, §§ 570 to 585; 81 Am.Jur.2d, Witnesses, §§ 62 et seq., 158 et seq.

22 C.J.S., Criminal Law, §§ 265 to 338; 22A C.J.S., Criminal Law, §§ 902 to 913; 98 C.J.S., Witnesses, §§ 596 to 605.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense. 4 ALR3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy. 6 ALR3d 905.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question. 9 ALR3d 990.

Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide. 11 ALR3d 834.

Propriety of increased punishment on new trial for same offense. 12 ALR3d 978.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 ALR3d 1261.

Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona. 25 ALR3d 1076.

Single or separate larceny predicated upon stealing property from different owners at the same time. 37 ALR3d 1407.

Validity of statute, ordinance or regulation requiring fingerprinting of those engaging in specified occupations. 41 ALR3d 732.

When does jeopardy attach in a nonjury trial. 49 ALR3d 1039.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery committed of another person at the same time. 51 ALR3d 693.

Censorship and evidentiary use of unconvicted prisoner’s mail. 52 ALR3d 548.

Acquittal in criminal proceeding as precluding revocation of probation on same charge. 76 ALR3d 564.

Acquittal in criminal proceeding as precluding revocation of parole on same charge. 76 ALR3d 578.

Instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant’s privilege against self-incrimination. 88 ALR3d 1178.

Admissibility in evidence of confession made by accused in anticipation of, during or following polygraph examination. 89 ALR3d 230.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial. 98 ALR3d 997.

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation. 99 ALR3d 781.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. 3 ALR4th 374.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness. 4 A.L.R.4th 617.

Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination. 4 ALR4th 1221.

Mental subnormality of accused as affecting voluntariness or admissibility of confession. 8 ALR4th 16.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements. 9 ALR4th 595.

Admissibility of evidence concerning words spoken while declarant was asleep or unconscious. 14 ALR4th 802.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 ALR4th 970.

What constitutes “manifest necessity” for state prosecutor’s dismissal of action, allowing subsequent trial despite jeopardy’s having attached. 14 ALR4th 1014.

Right of partners to assert personal privilege against self-incrimination with respect to production of partnership books or records. 17 ALR4th 1039.

Propriety and prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused. 19 ALR4th 368.

Impeachment of defense witness in criminal case by showing witness’ prior silence or failure or refusal to testify. 20 ALR4th 245.

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent. 23 ALR4th 563.

Right of prosecution to discovery of case-related notes, statements, and reports — state cases. 23 ALR4th 799.

Propriety of increased sentence following revocation of probation. 23 ALR4th 883.

Propriety of requiring suspect or accused to alter, or to refrain from altering, physical or bodily appearance. 24 ALR4th 592.

Power of state court, during same term, to increase severity of lawful sentence — modern status. 26 ALR4th 905.

Admissibility in criminal case of evidence that accused refused to take test of intoxication. 26 ALR4th 1112.

Extent and determination of attorney’s right or privilege against self-incrimination in disbarment or other disciplinary proceedings — post-Spevack cases. 30 ALR4th 243.

Failure to object to improper questions or comments as to defendant’s pretrial silence or failure to testify as constituting waiver of right to complain of error — modern cases. 32 ALR4th 774.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Voluntariness of confession as affected by police statements that suspect’s relatives will benefit by the confession. 51 ALR4th 495.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 ALR4th 631.

What constitutes assertion of rights to counsel following Miranda warnings — state cases. 83 ALR4th 443.

Admissibility, in prosecution in another state’s jurisdiction, of confession or admission made pursuant to plea bargain with state authorities. 90 ALR4th 1133.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges. 2 ALR5th 262.

Seizure or detention for purpose of committing rape, robbery or similar offense as constituting separate crime of kidnapping. 39 ALR5th 283.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police. 96 ALR5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — modern view. 97 ALR5th 201.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — self-intoxication. 9 ALR6th 1

Propriety of Using Otherwise Inadmissible Statement, Taken in Violation of Miranda Rule, to Impeach Criminal Defendant's Credibility — State Cases. 42 ALR6th 237

Right of witness in federal court to claim privilege against self-incrimination after giving sworn evidence on same matter in other proceedings. 42 ALR Fed. 793.

Propriety of court’s failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination. 55 ALR Fed. 742.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force. 66 ALR Fed. 119.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as “testimony” resulting in waiver of defendant’s privilege against self-incrimination. 81 ALR Fed. 892.

Availability of sole shareholder’s Fifth Amendment privilege against self-incrimination to resist production of corporation’s books and records — modern status. 87 ALR Fed. 177.

Double jeopardy considerations in federal criminal cases — Supreme Court cases. 162 ALR Fed. 415.

Section 10. Treason.

Treason against the State consists only in levying war against it, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Collateral references. —

70 Am.Jur.2d, Sedition, Subversive Activities and Treason, §§ 64 — 67, 71 — 73, 86.

87 C.J.S., Treason, §§ 4 to 12, 15.

Section 11. Rights of Accused.

In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less than six in courts not of record. The accused is entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses when the proof is evident or the presumption great; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Cross references. —

For statutory provisions guaranteeing right to bail, see AS 12.30.011 .

Notes to Decisions

Analysis

I.General Consideration

The 6th amendment and this section contain similar provisions guaranteeing a defendant the right to have compulsory process for obtaining witnesses in his favor. McCracken v. State, 521 P.2d 499 (Alaska 1974).

This section contains provisions almost identical with those of the 6th amendment to the federal constitution.Brown v. State, 372 P.2d 785 (Alaska 1962).

In guaranteeing to an accused the right to a speedy trial, the Alaska constitutional convention adopted essentially the identical language of the 6th amendment to the federal constitution.Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Crim. R. 17 as implementation of accused’s constitutional right to have compulsory process. See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Alaska not bound by U.S. Supreme court’s interpretation. —

Disapproval is voiced of the language in Knudsen v. City of Anchorage , 358 P.2d 375 (Alaska 1960) which would indicate that Alaska is bound by the U.S. supreme court’s interpretation of the 6th amendment of the United States Constitution.Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Knudsen v. City of Anchorage , 358 P.2d 375 (Alaska 1960) is overruled insofar as it indicates that the supreme court cannot give this section any broader application than the 6th amendment has been given by the United States supreme court. Roberts v. State, 458 P.2d 340 (Alaska 1969).

The supreme court is not limited by decisions of the United States supreme court or by the United States Constitution when it expounds the state constitution; the Alaska Constitution may have broader safeguards than the minimum federal standards. Roberts v. State, 458 P.2d 340 (Alaska 1969); Blue v. State, 558 P.2d 636 (Alaska 1977).

The rights enumerated in this section need not terminate at the same point in the course of a criminal case since these rights serve separate and largely unrelated purposes. State v. Wassillie, 606 P.2d 1279 (Alaska 1980).

“Criminal prosecution” is defined as including any offense a direct penalty for which may be incarceration in a jail or penal institution; also included in the definition of that term are offenses which may result in the loss of a valuable license and offenses where a heavy enough fine is imposed so as to indicate criminality, because such a fine could be taken as a gauge of the ethical and social judgments of the community. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The category of “criminal prosecutions” is defined as including any offense a direct penalty for which may be incarceration in a jail or penal institution. It also includes offenses which may result in the loss of a valuable license, such as a driver’s license or a license to pursue a common calling, occupation, or business. It must also include offenses which, even if incarceration is not a possible punishment, still connote criminal conduct in the traditional sense of the term. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

The category of “criminal prosecutions” does not cover revocation of licenses pursuant to administrative proceedings where lawful criteria other than criminality are a proper concern in protecting public welfare and safety, as the basis of revocation or suspension in such instances is not that one has committed a criminal offense, but that the individual is not fit to be licensed, apart from considerations of only guilt or innocence of crime. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

The supreme court’s definition of a criminal prosecution does not cover revocation of licenses pursuant to administrative proceedings where lawful criteria other than criminality are a proper concern in protecting public welfare and safety, as the basis of revocation or suspension in such instances is not that one has committed a criminal offense, but that the individual is not fit to be licensed, apart from considerations of only guilt or innocence of crime. Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

The category of “criminal prosecutions” includes any offense a direct penalty for which may be incarceration in a jail or penal institution. State v. Browder, 486 P.2d 925 (Alaska 1971); RLR v. State, 487 P.2d 27 (Alaska 1971).

The supreme court’s definition of a criminal prosecution has been extended to provide a jury trial in such traditionally noncriminal areas as juvenile proceedings and contempt. Its decisions have centered upon the distinction between offenses carrying sanctions which are punitive and those having a primarily remedial effect. Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

An in rem forfeiture proceeding is not a “criminal prosecution” within the meaning of this section. Resek v. State, 706 P.2d 288 (Alaska 1985).

A heavy enough fine might indicate criminality because it can be taken as a gauge of the ethical and social judgments of the community. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Criminal contempt proceeding is a criminal prosecution. —

Under AS 09.50.020 the contemnor may be incarcerated in a jail or penal institution for six months. Thus, it is clear that a criminal contempt proceeding is criminal prosecution within this section. State v. Browder, 486 P.2d 925 (Alaska 1971).

The parens patriae principle is the core of the established view that juvenile proceedings are different from criminal trials. Accordingly, a parens patriae rationale has been used to justify restrictions on due process safeguards — although protections have been increasingly extended in recent years. Where juveniles are confined without the due process rights afforded adults, they have a right to treatment. Rust v. State, 582 P.2d 134 (Alaska 1978).

Contempt in juvenile proceedings. —

AS 04.16.050 expressly provides that the terms of a defendant’s probation can include custodial in-patient treatment and community work service. Since a defendant has no right to refuse the probation, the defendant must comply with these conditions, and the court can enforce compliance through its contempt power. State v. Auliye, 57 P.3d 711 (Alaska Ct. App. 2002).

Cultural and language barriers as hinderance of an accused’s ability to understand his rights. See Gregory v. State, 550 P.2d 374 (Alaska 1976).

Defendant is entitled to have access to all relevant evidence in the possession of the state in order that he be afforded his right to a fair trial. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Proceedings to determine fitness to be licensed distinguished from criminal prosecutions which could result in penal loss of professional license. See Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

Rights at hearing to determine whether defendant is guilty but mentally ill. —

At commitment hearing under former AS 12.45.090 (see now AS 12.47, especially AS 12.47.060 ) after defendant has been acquitted on the ground of mental disease or defect, there may be a six person jury; the defendant is entitled to reasonable notice, to present evidence, to confront and cross-examine witness and to appeal; and defendant has the right to be present, and to counsel. State v. Alto, 589 P.2d 402 (Alaska 1979).

Attempt to locate witness must be shown. —

Where there is no showing of an attempt to locate a witness, prejudice to an interest protected by speedy trial should hardly be presumed. To adopt such an approach would allow any disappointed defendant to base an appeal on supposedly unavailable witnesses whom the defendant did not even attempt to call at trial. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

“Waiver” is an intentional relinquishment or abandonment of a known right or privilege. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Acquiescence in the loss of fundamental rights will not be presumed. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Every presumption should be indulged against waiver. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

An attorney’s waiver of his client’s constitutional rights will be binding on the client, subject to established limitations, when waiver occurs during the trial and results from decisions made during the trial. Conversely, an attorney’s waiver of his client’s constitutional rights without his client’s consent will not be binding on the client if the waiver occurs before or after the trial or is the result of a decision made during the pretrial period. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Waiver of right of accused to be present at every stage of trial. See Brown v. State, 372 P.2d 785 (Alaska 1962).

Glasgow v. State , 469 P.2d 682 (1970). has retroactive effect. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Application of waiver rule. —

The supreme court treats preliminary hearings, suppression hearings and other such trial-type proceedings as if they were the trial itself for purposes of the waiver rule, in keeping with its pragmatic approach. Thus, tactical decisions to waive constitutional rights made during the course of such proceedings will be binding on the client. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Purpose of preliminary hearing. —

The main purpose of a preliminary hearing is to protect the accused from unwarranted incarceration while awaiting action by the grand jury, by determining whether there is a basis for holding him until the grand jury has reviewed the facts. Maze v. State, 425 P.2d 235 (Alaska 1967).

While it is true that a preliminary hearing usually affords the accused an opportunity to learn in advance of trial something of the nature of the evidence upon which the government will rely, its principal function is not that of providing pretrial discovery. Maze v. State, 425 P.2d 235 (Alaska 1967).

Grand jury may act on accused’s case before preliminary hearing. —

The fact that a grand jury acts on an accused’s case before a scheduled preliminary hearing does not amount to illegal prejudice. Maze v. State, 425 P.2d 235 (Alaska 1967).

After a grand jury has acted on the accused’s case and returned an indictment, no reason exists for conducting a preliminary hearing to determine whether probable cause exists for detaining the accused. Maze v. State, 425 P.2d 235 (Alaska 1967).

Admissibility of evidence. —

Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. A defendant is entitled to a fair trial but not a perfect one. It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Sidney v. State, 468 P.2d 960 (Alaska 1970).

It was harmless error for prosecution to cross-examine defense expert on the absence of autopsy slides because defendant had remedies for the error at trial. While the prosecution was improperly allowed to imply that autopsy slides existed, defendant could have presented evidence of standard procedures when tissue samples are created as part of an autopsy. It was reasonable for the defense expert to conclude that, because he had not received any slides, none existed. Garner v. State, — P.3d — (Alaska Ct. App. Mar. 30, 2011) (memorandum decision).

Admission of one codefendant’s inculpatory extrajudicial statements did not require reversal of other codefendant’s conviction. Sidney v. State, 468 P.2d 960 (Alaska 1970).

Constitutionality of former AS 11.40.150. —

Although former AS 11.40.150 failed to define the word “immoral,” it was not rendered so vague as to be unconstitutional under this section nor under the 6th amendment to the federal constitution.Anderson v. State, 384 P.2d 669 (Alaska 1963), overruled, State v. Guest, 583 P.2d 836 (Alaska 1978).

And of AS 09.20.070 . —

AS 09.20.070 is not violative of this section. West v. State, 409 P.2d 847 (Alaska 1966).

Administrative delay. —

Where a driver was arrested for drunk driving, and the criminal charges were dropped because the arresting officer was deployed to Iraq and would not be available to testify at trial for more than a year, but where the administrative proceedings for the suspension/revocation of the driver’s operating license were not dismissed, the driver’s due process rights were not violated where her license was suspended almost three years after her arrest because administrative delay alone, without prejudice, did not violate due process, and any prejudice to the driver was slight because she was issued a permit that allowed her to drive throughout the delay. Alvarez v. State, — P.3d — (Alaska Aug. 13, 2010), op. withdrawn, sub. op., 249 P.3d 286 (Alaska 2011).

Speedy trial limits under Alaska Const. art. I, § 11 and U.S. Const. amend. VI did not attach to license suspension proceedings under AS 28.15.165 because the driver was issued a temporary license prior to the revocation proceeding. Alvarez v. State, 249 P.3d 286 (Alaska 2011).

Applied in

Clark v. State, 388 P.2d 816 (Alaska 1964); Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983); Drumbarger v. State, 716 P.2d 6 (Alaska Ct. App. 1986); State v. Stocker, 741 P.2d 1215 (Alaska Ct. App. 1987); Mitchell v. State, 818 P.2d 688 (Alaska Ct. App. 1991).

Quoted in

Alaska Pub. Defender Agency, Juneau Office v. Superior Court of First Judicial Dist., 584 P.2d 1106 (Alaska 1978); Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988); Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144 (Alaska 1989); Barry H. v. State, 404 P.3d 1231 (Alaska 2017).

Stated in

Martinez v. State, 423 P.2d 700 (Alaska 1967); Chase v. State, 678 P.2d 1347 (Alaska Ct. App. 1984).

Cited in

Scott v. State, 519 P.2d 774 (Alaska 1974); State v. Sears, 553 P.2d 907 (Alaska 1976); Adams v. State, 598 P.2d 503 (Alaska 1979); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); Loveless v. State, 634 P.2d 941 (Alaska Ct. App. 1981); Walker v. State, 662 P.2d 948 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); Miessner v. Municipality of Anchorage, 673 P.2d 285 (Alaska Ct. App. 1983); Nylund v. State, 716 P.2d 387 (Alaska Ct. App. 1986); R.H. v. State, 777 P.2d 204 (Alaska Ct. App. 1989); Newcomb v. State, 800 P.2d 935 (Alaska Ct. App. 1990); In re A.S.W., 834 P.2d 801 (Alaska 1992); Alexander v. State, 838 P.2d 269 (Alaska Ct. App. 1992); State v. Titus, 933 P.2d 1165 (Alaska Ct. App. 1997); Raphael v. State, 994 P.2d 1004 (Alaska 2000); Hertz v. State, 8 P.3d 1144 (Alaska Ct. App. 2000); Pease v. State, 54 P.3d 316 (Alaska Ct. App. 2002); Flood v. State, 304 P.3d 1083 (Alaska Ct. App. 2013); McDaniels v. State, 451 P.3d 403 (Alaska Ct. App. 2019); Hedrick v. State, 474 P.3d 4 (Alaska Ct. App. 2020).

II.Jury Trial
A.In General

This section guarantees the right to trial by jury to one in a criminal prosecution. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The Alaska Constitution guarantees the right to jury trial in any criminal prosecution in which an accused can be incarcerated in a jail or penal institution. State v. Browder, 486 P.2d 925 (Alaska 1971).

In any criminal prosecution the accused, upon demand, is entitled to a jury trial. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The right to trial before an impartial jury is explicitly secured by this section to individuals accused of crimes. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Alaska’s constitutional provision relating to the right to jury trial is interpreted to mean that in any criminal prosecution an accused, upon demand, is entitled to a jury trial. State v. Browder, 486 P.2d 925 (Alaska 1971).

Sixth amendment to the United States Constitution provides similar protection to that provided by this section. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Sixth amendment made applicable to states. —

Under Klopfer v. North Carolina , 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1, (1967), the U.S. supreme court, through the due process clause of the 14th amendment, made applicable to the states the 6th amendment right to speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The right to jury trial contained in the 6th amendment is directly applicable to state prosecutions. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The 14th amendment due process clause guarantees the right to jury trial in serious criminal prosecutions in the states. RLR v. State, 487 P.2d 27 (Alaska 1971).

Trial by jury is one of the oldest discernible and distinguishing institutions of the Anglo-American system of jurisprudence. State v. Browder, 486 P.2d 925 (Alaska 1971).

The jury is an essential institution in a democracy. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The right to jury trial holds a central position in the framework of American justice. State v. Browder, 486 P.2d 925 (Alaska 1971).

And it serves multifaceted purposes. The jury is, of course, primarily charged with the task of finding the truth of the facts asserted. Yet beyond its utility as a finder of fact, the jury fulfills other equally vital political and psychological purposes. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Right to jury is fundamental. —

As a protection or barrier against the exercise of arbitrary power, the people of this state, in adopting the Alaska Constitution, guaranteed to petitioners the right to be tried by “an impartial jury of twelve.” This is a fundamental right, recognized as such throughout the nation by the constitutions of all states and the federal government. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Scope of right to jury trial. —

While the Alaska supreme court must enforce the minimum constitutional standards imposed upon it by the U.S. supreme court’s interpretation of the 14th amendment, it is free, and it is under a duty, to develop additional constitutional rights and privileges under the Alaska Constitution if it finds such fundamental rights and privileges to be within the intention and spirit of local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of Alaska’s constitutional heritage. The Alaska supreme court need not stand by idly and impassively, waiting for constitutional direction from the highest court of the land. Instead, it should be moving concurrently to develop and expound the principles embedded in Alaska constitutional law. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Trial judge properly restricted defense expert testimony in a criminal case because judge found that defense attorney willfully violated Alaska R. Crim. P. 16(c)(4) by failing to disclose the substance of an expert’s testimony; that ruling did not violate Alaska Const., art. I, § 11. Harris v. State, 195 P.3d 161 (Alaska Ct. App. 2008).

The right to jury trial shall be made available to everyone on equal terms as the plain constitutional language commands. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

In any criminal prosecution. —

In any criminal prosecution, whether under state law or for violation of a city ordinance, the accused upon demand is entitled to a jury trial and to the extent that Knudsen v. City of Anchorage , 358 P.2d 375 (Alaska 1960), etc., is inconsistent with this opinion, it is overruled. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Misdemeanor prosecutions. —

The right to trial by jury is a fundamental one under this section even in misdemeanor prosecutions. O'Donnell v. Municipality of Anchorage, 642 P.2d 835 (Alaska Ct. App. 1982).

Where the reasons for the right to jury trial apply, the right inheres. RLR v. State, 487 P.2d 27 (Alaska 1971).

Size of jury. —

Trial court did not violate defendant's constitutional right to a twelve-person jury, under Alaska Const. art. I, § 11, because defendant knowingly and voluntarily chose in writing to proceed to trial with an undersized jury. Moreover, the trial court did not abuse its discretion when it decided to release the twelfth juror in light of the unexpected length of the trial and the twelfth juror being scheduled to leave on a vacation. Mati v. State, — P.3d — (Alaska Ct. App. Aug. 7, 2019) (memorandum decision).

Exclusions from requirement of jury trial. —

Excluded from the requirement of jury trial are such relatively innocuous offenses as wrongful parking of motor vehicles, minor traffic violations, and violations which relate to the regulation of property, sanitation, building codes, fire codes, and other legal measures which can be considered regulatory rather than criminal in their thrust, so long as incarceration is not one of the possible modes of punishment. Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Where a matter is being prosecuted under Civil Rule 95(a) (costs and attorney’s fees) and Civil Rule 95(b) (which now provides a maximum fine of $50,000 for rule infractions), there is no right to a jury trial. Weidner v. Superior Court, 715 P.2d 264 (Alaska Ct. App. 1986).

Strict liability commercial fishing violations under AS 16.05.722 are not criminal violations under this section and therefore no jury trial is required. State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738 (Alaska 1998).

Suspension of obligor’s driver’s license under AS 25.27.246 , pending compliance with child support order or payment plan, is not punitive and criminal in nature; the Alaska Constitution does not, therefore, entitle the obligor to a jury trial. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Court did not deprive defendant, who was charged with speeding, of the right to a jury trial under U.S. Const. amend. VI or Alaska Const. art. I, § 11 because speeding was not an offense that carried a potential penalty of imprisonment, loss of driver’s license, or a fine so large as to connote criminality. Samples v. Municipality of Anchorage, 163 P.3d 967 (Alaska Ct. App. 2007).

Supreme court classifies offenses. —

The supreme court has independent power to determine which offenses are petty or serious so as to require jury trial. State v. Browder, 486 P.2d 925 (Alaska 1971).

Contemporary social values rather than historical categorizations should determine whether a prosecution is criminal for purposes of the right to jury trial. State v. Browder, 486 P.2d 925 (Alaska 1971); RLR v. State, 487 P.2d 27 (Alaska 1971).

The right to jury trial is coextensive with the right to counsel. RLR v. State, 487 P.2d 27 (Alaska 1971).

Imposition of sentence by judge, not jury, upheld. —

When a defendant was sentenced to a 99-year minimum mandatory sentence, the imposition of the sentence by a judge, not a jury, did not violate either the jury trial clause or the due process clause. Malloy v. State, 153 P.3d 1003 (Alaska Ct. App. 2007).

Right to jury trial for criminal contempt. —

This section guarantees the accused the right to jury trial for a direct criminal contempt. State v. Browder, 486 P.2d 925 (Alaska 1971).

Analysis of the premises upon which the power to summarily imprison for criminal contempt indicates that no exception to the right to jury trial should be made for petty contempts where imprisonment is a potential sanction. State v. Browder, 486 P.2d 925 (Alaska 1971).

Certain contempts punishable by imprisonment. —

Under the provisions of AS 09.50.010 and AS 09.50.020 , only the following contempts are punishable by imprisonment: (1) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority or to interrupt the course of trial or other judicial proceeding; and (2) a breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the course of a trial or other judicial proceedings. Therefore, these must be tried by jury. State v. Browder, 486 P.2d 925 (Alaska 1971).

Delinquency proceedings. —

Children are constitutionally entitled to jury trial in the adjudicative stage of a delinquency proceeding. However, due to the uniqueness of some facets of the procedures governing children’s court proceedings and the potential damage which may accrue to the child by a public trial, the child should first consult with his counsel and his parents or guardian when appropriate, and then affirmatively assert the right to a trial by jury before it is finally granted. RLR v. State, 487 P.2d 27 (Alaska 1971).

Whenever a child in a delinquency proceeding is charged with acts which would be a crime subject to incarceration if committed by an adult, this section guarantees him the right to jury trial. To the extent In re White, 445 P.2d 813 (Alaska 1968), is inconsistent with this opinion, it is overruled. RLR v. State, 487 P.2d 27 (Alaska 1971); Rust v. State, 582 P.2d 134 (Alaska 1978).

The purposes of the right to jury trial, such as protection against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge, apply as much in children’s cases as in adults’ cases. RLR v. State, 487 P.2d 27 (Alaska 1971).

Right to jury trial on application of certain statutory aggravators to enhance sentence. —

In considering defendant’s right to a jury trial regarding imposition of enhanced sentence based on aggravating factors set forth in AS 12.55.155(c)(7) and (c)(20), so long as the fact of the prior felony conviction was not disputed, it was purely a question of law whether a defendant’s prior felony was a more serious class of offense than the defendant’s current felony, and a sentencing judge could lawfully make this determination, so the defendant had no right to a jury trial on the application of aggravator (c)(7); the question whether defendant had a right to jury trial with respect to aggravator (c)(20) (offender on felony probation) was not decided where it was undisputed that the defendant was on felony probation when he committed his current felony, and, even if entitled to a jury trial on the application issue, any error was harmless beyond a reasonable doubt. Snelling v. State, 123 P.3d 1096 (Alaska Ct. App. 2005).

Delinquency adjudication. —

Where delinquency adjudication was sought in superior court for a juvenile who was charged with a Class A misdemeanor, the proceedings constituted a criminal prosecution in a court of record, thus entitling the juvenile to a twelve-person jury. P.S. v. State, 655 P.2d 1319 (Alaska Ct. App. 1982).

If child waives jury trial, state may not require it, but jury trial shall be provided only on demand. RLR v. State, 487 P.2d 27 (Alaska 1971).

Child-in-need-of-aid proceedings. —

As a child-in-need-of-aid (CINA) proceeding is not a criminal proceeding or analogous to one, Alaska Const., art. I, § 11 did not entitle a mother to a jury trial at the adjudication stage of the CINA proceedings. Alyssa B. v. Dep't of Health & Social Servs., 123 P.3d 646 (Alaska 2005).

Prosecution of minors for under-age drinking or possession of alcohol. Because minors charged with under-age drinking or possession of alcohol are subject to revocation of their driver’s license upon conviction, if charged with such offense they are entitled to a jury trial and to court-appointed counsel if they are indigent. State v. District Court, 927 P.2d 1295 (Alaska Ct. App. 1996).

Custodial confinement in a residential alcohol treatment program is the functional equivalent of jail time and therefore constitutes a sentence of imprisonment. Thus, a person who faces custodial in-patient alcohol treatment as a penalty for an offense is entitled to a jury trial and to court-appointed counsel. Likewise, a person facing the possibility of community work service is entitled to these same procedural rights. State v. Auliye, 57 P.3d 711 (Alaska Ct. App. 2002).

The Alaska Constitution guarantees defendants the right to trial by jury and (if indigent) the right to court-appointed counsel if they are charged with an offense (such as an underage alcohol offense) that carries a potential penalty of: (1) imprisonment; (2) the loss of valuable license (e.g., a driver’s license); or (3) a fine so large as to connote criminality; juvenile offenders facing similar consequences also have the right to trial by jury. State v. Auliye, 57 P.3d 711 (Alaska Ct. App. 2002).

Advising defendants in group arraignment of jury trial rights. —

In a group arraignment, each defendant with a right to a jury trial must be individually apprised of that right. The arraigning judge may not leave the defendants to figure out what rights they have, but if all the defendants in a group face penalties entitling them to jury trials, the arraigning judge may then properly tell the group as a whole of their jury trial rights; the advice, however, must be unconditional. Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

Right to jury trial wrongfully denied. —

Where judge ordered an attorney to show cause why he could not represent a criminal defendant and the show-cause order did not limit the potential punishment to which the attorney was exposed, the attorney was wrongfully denied a trial by jury when he was found in contempt and ordered to pay a $500 fine, since the potential punishment, not the sentence or fine actually imposed, determines whether a person is entitled to a trial by jury. Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), overruled, De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Personal waiver of a constitutionally guaranteed jury is required under the United States and Alaska Constitutions during the pretrial period. Walker v. State, 578 P.2d 1388 (Alaska 1978).

Waiver of the right to trial by a jury of 12 persons requires that the court personally address the defendant, and that failure to do so is error per se. Walker v. State, 578 P.2d 1388 (Alaska 1978).

Where an attorney’s waiver of the right to trial by a jury of 12 persons occurred during the pretrial period, it was not binding on the client. Walker v. State, 578 P.2d 1388 (Alaska 1978).

Where in midtrial defendant’s attorney waived defendant’s right to a six-person jury due to one juror’s illness, but where at no time did defendant personally waive this right, defendant’s subsequent conviction by a five-person jury was in violation of this section. Land v. Municipality of Anchorage, 640 P.2d 164 (Alaska Ct. App. 1982).

Trial by jury is a fundamental right accorded criminal defendants, and, as such, it requires a knowing and intelligent waiver for relinquishment. Waiver cannot be presumed. Walker v. State, 578 P.2d 1388 (Alaska 1978).

The duty of a trial court to address a defendant personally on waiver of a jury of 12 extends to a duty to inquire whether the waiver is voluntary and knowing. Failure to do so is error per se. Walker v. State, 578 P.2d 1388 (Alaska 1978).

The requirements as to personal waiver of jury trial rights in Walker v. State , 578 P.2d 1388 (Alaska 1978) must be read to apply to misdemeanor prosecutions. O'Donnell v. Municipality of Anchorage, 642 P.2d 835 (Alaska Ct. App. 1982).

Where defendant explicitly waived his right to a jury trial on the condition that he be allowed to appeal the trial court’s denial of his motion to dismiss and the court’s refusal to permit his mistake of law defense, he made a strategic decision to take his chances with the judge and could not seek a jury trial after waiving his right. Ostrosky v. Alaska, 913 F.2d 590 (9th Cir. Alaska 1990).

Delinquency adjudication as aggravating factor in sentencing. —

Defendant’s Sixth Amendment right to a jury was not infringed when the trial court was allowed to consider defendant’s prior adjudication as a delinquent as an aggravating factor at sentencing under AS 12.55.155 ; as a juvenile in Alaska, defendant had a right to a jury trial, and defendant, as a juvenile, had a right to proof beyond a reasonable doubt. Greist v. State, 121 P.3d 811 (Alaska Ct. App. 2005).

“Courts not of record”. —

As used in this section, the phrase “courts not of record” means courts of limited jurisdiction, such as the district court, which have been created by the legislature pursuant to constitutional authority and which the legislature has not seen fit to designate specifically as “courts of record.” Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

No conflict between this section and AS 22.15.150 . —

There is no conflict between this section, which provides for a jury of 12 in criminal cases but states that the legislature may provide for a jury of not more than 12 nor less than six in courts not of record, and AS 22.15.150 , which provides for a jury of six in a district court, since the district court is a court not of record. Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

Constitutionality of one-year residency requirement for jury service. —

See Webb v. State, 580 P.2d 295 (Alaska 1978).

No right to jury trial in certain administrative proceedings. —

The Alaska Constitution does not entitle a person to a jury trial in administrative proceedings affecting a professional license where his fitness to practice that profession is the primary concern. Alaska Bd. of Fish & Game v. Loesche, 537 P.2d 1122 (Alaska 1975).

Broad interpretation of Cr. R. 24(c)(11), which allows challenges to potential jurors on the ground that “the person is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or been accused by him in criminal prosecution” did not deprive defendant of his constitutional right to a jury that is representative of the community. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Jury instruction on unanimity. —

It was unnecessary to resolve whether the instruction on the requirement of jury unanimity as it related to a felony murder charge was correct because the jury unanimously agreed that defendant was guilty of murder under other subsections of the second-degree murder statute. Lawson v. State, 264 P.3d 590 (Alaska Ct. App. 2011).

Because defendant’s right to have jurors all agree that defendant committed a single offense was protected by the Alaska Constitution’s due process clause under Alaska Const. art. 1, § 7, the court of appeals erroneously placed the burden of showing prejudice of a constitutional error on defendant rather than the State. Khan v. State, 278 P.3d 893 (Alaska 2012).

Effect of refusal to instruct. —

A defendant’s right to a jury trial is not infringed by the trial court’s refusal to instruct on lesser-included offenses or affirmative defenses without support in the evidence. Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982).

Presence of uniformed guards in courtroom. —

Anthony v. State , 521 P.2d 486 (Alaska 1974) precludes the appearance before members of the jury of uniformed officers or guards who are physically restraining a defendant or exercising actual custody and control over his person. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Mere presence of uniformed officers in a neutral area of the courtroom, without any overt manifestation of actual physical restraint or custody, is not sufficient to deprive the defendant of the right to a fair trial. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982), narrowing the interpretation of Anthony v. State, 521 P.2d 486 (Alaska 1974).

Defendant was mentally capable of waiving right to jury trial. —

See Walunga v. State, 630 P.2d 527 (Alaska 1980).

Right to jury trial not abridged by AS 12.55.145 . —

Defendants’ right to trial by jury was not abridged by the presumptive sentencing provisions in AS 12.55.145 , which allowed the judge to determine whether defendant had formerly been convicted of one or more felonies. Huitt v. State, 678 P.2d 415 (Alaska Ct. App. 1984).

B.Speedy

Under both the United States and Alaska Constitutions, a defendant is entitled to a speedy trial. Paul v. State, 560 P.2d 754 (Alaska 1977).

Sentencing delays are governed by both the federal and Alaska constitutional guarantees of a speedy trial. Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, — U.S. —, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

State and federal constitutional requirements mandate that there be no unreasonable delay in bringing an accused to trial. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

The right to a speedy trial is one of the most basic rights preserved by the constitution. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

“Speedy trial”. —

Most important, a speedy public trial involves a “trial” — a judicial examination of issues present in a criminal case in order to arrive at a just result. Justice to both the accused and the public is the primary objective. “Speed” is important insofar as it aids in the achievement of such justice. Hence, a speedy public trial is a relative concept in that the circumstances of each case determine whether it has been afforded an accused. Spight v. State, 450 P.2d 157 (Alaska 1969); Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The supreme court is not bound by federal law when interpreting the speedy trial provisions of the Alaska Constitution, so long as it observes minimum federal standards. Yarbor v. State, 546 P.2d 564 (Alaska 1976).

Interests protected by speedy trial right. —

See Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, — U.S. —, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

The purposes to be served by the guarantee of a speedy trial are to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself. These oppressive forces become less important when the delay is at the instance of the defendant. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The purposes to be served by the guarantee of a speedy trial are to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself. Paul v. State, 560 P.2d 754 (Alaska 1977).

The right to a speedy trial protects against prejudice from (1) incarceration prior to trial, and (2) impaired ability to defend. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

The speedy trial guarantee fulfills three main purposes: (1) It prevents harming a defendant through a weakening of his case as evidence and witnesses’ memories fade with the passage of time; (2) it prevents prolonged pretrial incarceration; and (3) it limits the infliction of anxiety upon the accused because of long-standing charges. Nickerson v. State, 492 P.2d 118 (Alaska 1971); Tarnef v. State, 512 P.2d 923 (Alaska 1973).

The right to a speedy trial fulfills several purposes. One is to prevent harming the defendant by a weakening of his case as evidence and memory of witnesses grow stale with the passage of time. Another is to prevent prolonged pretrial incarceration and the infliction of anxiety upon the accused because of long-pending charges. Lastly, it is recognized that harm is inflicted upon an accused who is serving a sentence in another jurisdiction if he is not promptly allowed to be tried in the jurisdiction where charges are still pending. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The speedy trial guarantee has been seen as fulfilling at least three purposes: (1) To prevent harming the defendant by a weakening of his case as evidence and memories of witnesses grow stale with the passage of time; (2) to prevent prolonged pretrial incarceration; and (3) to limit the infliction of anxiety upon the accused because of long-standing charges. In postulating speedy trial standards, it is necessary to be cognizant of each of these purposes. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The right to a speedy trial serves several purposes, only one of which is concerned with the accuracy of verdicts in criminal trials. The existence of these other purposes, however, in no way diminishes the importance of speedy trial as a guarantee of basic procedural fairness to the accused. Protracted delay in bringing a criminal case to trial may substantially impinge upon the reliability of the fact-finding process. The purpose of the supreme court holding on the issue of speedy trial in Glasgow v. State , 469 P.2d 682 (Alaska 1970) is thus significantly, though not exclusively, related to the integrity of the fact-finding process. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Protection of purposes. —

The purposes of the speedy trial rule are adequately protected by the dismissal of tardy trials without engrafting additional sanctions pertaining to revocation proceedings. Paul v. State, 560 P.2d 754 (Alaska 1977).

Criminal Rule 45. —

Both the constitutional right to a speedy trial and Cr. R. 45 pertain to trials. Paul v. State, 560 P.2d 754 (Alaska 1977).

Criminal Rule 45 will generally provide a speedier trial than is constitutionally required. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984).

Speedy trial rule construed under Cr. R. 45. —

See State v. Nitz, 684 P.2d 134 (Alaska Ct. App. 1984).

Right must be promptly asserted. —

Speedy trial is a personal right of the defendant, and thus, the right is deemed waived if not promptly asserted. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

The defendant must move for dismissal on speedy trial grounds prior to trial or pleading guilty, or forfeit the right. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

Defendant’s right to a speedy trial, as provided for in Cr. R. 45, was not abrogated where the indictment in question did not arise from the same conduct for which the defendant was originally arrested, but rather from admissions to criminal conduct later disclosed. The statutory 120-day period did not, therefore, begin to run until defendant received the later indictment. Kizzire v. State, 715 P.2d 272 (Alaska Ct. App. 1986).

Outer limits of Alaska’s constitutional right to speedy trial are not defined by Cr. R. 45. Snyder v. State, 524 P.2d 661 (Alaska 1974).

Where juvenile jurisdiction is waived, Cr. R. 45 begins to run on the day the waiver order is signed. Brower v. State, 683 P.2d 290 (Alaska Ct. App. 1984), wherein the court refused to modify R.D.S.M. v. Intake Officer, 565 P.2d 855 (Alaska 1977) where a juvenile is waived to adult court .

Criminal Rule 45 is only a “basic datum” and a considerably longer period could elapse before trial without resultant unfairness or injustice to the accused. Snyder v. State, 524 P.2d 661 (Alaska 1974).

Criminal Rule 45 is designed to satisfy the imprecise limits of the constitutional right to a speedy trial with much room to spare. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

Periods of delay excluded by Cr. R. 45. —

In calculating delay attributable to the state, the new speedy trial rule, Cr. R. 45, excludes periods of delay resulting from other proceedings concerning the defendant, such as motions to suppress evidence, from trials on other charges, from interlocutory appeals and from any continuance consented to by defendant’s attorney. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

The supreme court will not read a reasonable time exception into Cr. R. 45. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

It is conceivable that the objective requirements of Cr. R. 45 might be met while constitutional standards are violated. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

Even where the objective standards of the speedy trial rule, Cr. R. 45, have been met, the delay between arrest and trial might still have prejudiced the defendant to the extent that his constitutional speedy trial rights were violated. Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983).

Right attaches when defendant formally accused. —

The right to a speedy trial does not attach before the defendant becomes formally accused, that is, the subject of a filed complaint or an arrest. Yarbor v. State, 546 P.2d 564 (Alaska 1976).

The Alaska Constitution does not provide a right to a speedy trial that would attach when the state has acquired sufficient evidence to charge an individual with a crime. Yarbor v. State, 546 P.2d 564 (Alaska 1976).

The Alaska constitutional right to speedy trial, embodied in this section, does not attach prior to formal accusation. Coffey v. State, 585 P.2d 514 (Alaska 1978).

A claim of preaccusation delay must sound in terms of deprivation of due process of law under the 14th amendment to the United States Constitution and Alaska Const., art. I, § 7. The United States Constitution’s sixth amendment does not afford speedy trial protection until the commencement of formal proceedings. Similarly, the Alaska constitutional right to speedy trial, embodied in this section, does not attach prior to formal accusation. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Attachment at institution of some form of charge. —

The right to a speedy trial attaches at least from the institution of some form of charge. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Defendant became “formally accused,” and his constitutional right to a speedy trial attached, when the district attorney’s office clearly manifested its decision to prosecute him by formally and publicly filing an information charging him with sexually abusing his stepdaughter. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

Filing of information. —

When defendant claimed a five-year delay between filing an information and arrest or indictment violated the right to speedy trial, the speedy trial clock began to run from the filing of the information because this began litigation against defendant, at which time defendant was placed under a cloud of suspicion. State v. Wright, 404 P.3d 166 (Alaska 2017).

Defendant becomes formally accused for speedy trial purposes under the Alaska Constitution not just upon indictment or arrest but also when the State files an information charging the defendant with a crime because (1) the filing of an information marks the beginning of litigation against a defendant, (2) filing an information clearly manifests a prosecutor's decision to prosecute, and (3) the filing of an information is sufficient to toll the statute of limitations on a criminal charge. State v. Wright, 404 P.3d 166 (Alaska 2017).

Extensive delays threaten the basis of the trial itself. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

And the integrity of the verdict. —

See Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Without a speedy trial, neither the supreme court nor the state is able to establish with the certainty required by Alaska law that the verdict is just. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The period of incarceration should not affect the fact-finding process at the trial level. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Any delay which distorts facts is undesirable. —

Since a basic purpose of the speedy trial guarantee is to insure that the verdict returned represents the justice of the factual situation, any delay which results in a distortion of the facts presented is undesirable. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. Spight v. State, 450 P.2d 157 (Alaska 1969).

Since speedy trial is a relative concept, the supreme court, in determining whether a speedy trial had been denied, must balance the needs of the accused and the requirements of the judicial process in light of the purposes served by the speedy trial guarantees. In establishing this balance, it is proper to consider at least three factors: The particular source of delay, the reasons for the delay, and whether the delay prejudiced interests protected by speedy trial. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

In speedy trial cases the supreme court must balance the needs of the accused and the requirements of the judicial process with the purposes served by the speedy trial guarantee. Taggard v. State, 500 P.2d 238 (Alaska 1972).

While the supreme court has recognized that there may be reason to dismiss criminal charges because of preindictment delay, such a decision must be based on a consideration of several factors. The reason for delay, the prejudice to defendant, and the governmental interest in postponing accusation must be evaluated to assess a claim of violation of due process with respect to events occurring prior to indictment. P.H. v. State, 504 P.2d 837 (Alaska 1972).

Speedy trial is a relative concept in that the circumstances of each case determine whether it had been afforded an accused. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Whether a speedy trial violation has occurred depends on the facts of each case and general constitutional principles. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Each case alleging an unconstitutional deprivation of speedy trial must be considered in terms of its own particular facts and circumstances. Tarnef v. State, 492 P.2d 109 (Alaska 1971); Taggard v. State, 500 P.2d 238 (Alaska 1972).

Trial should be reasonably contemporaneous with wrongful act. —

The deterrence and rehabilitation purposes of the criminal law are frustrated if the trial is not reasonably contemporaneous with the wrongful act. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

A positive duty rests upon the courts and prosecutors to see that criminal defendants are afforded a speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

It is the state, acting through its officials, which has the primary obligation of affording to the accused an early trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

It is the prosecution which initiates a case and which has the power of going forward with it. In the exercise of this power, it is the duty of the public prosecutor to observe the constitution. To condition that duty on a defendant’s having demanded constitutional compliance is an unacceptable misallocation of the burden of insuring a speedy trial. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The burden is upon the state to give a speedy trial or be denied the power to prosecute. Rutherford v. State, 486 P.2d 946 (Alaska 1971); Peterkin v. State, 543 P.2d 418 (Alaska 1975).

To expect a criminal defendant to insist on his own trial is inconsistent with human nature. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Essential ingredient is orderly expedition. —

Because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. The essential ingredient is orderly expedition and not mere speed. Glasgow v. State, 469 P.2d 682 (Alaska 1970); Rutherford v. State, 486 P.2d 946 (Alaska 1971); Nickerson v. State, 492 P.2d 118 (Alaska 1971).

While an adult defendant in a criminal case must be brought to trial within a reasonable time, due process requires that he may not be brought to trial too soon. He must be given a reasonable time to consult with his counsel and to prepare his defense. Doe v. State, 487 P.2d 47 (Alaska 1971).

Factors considered in determining whether speedy trial violation occurred. —

In determining whether a speedy trial violation has occurred, the court would consider three factors — the source of the delay, the reasons for the delay, and whether the delay prejudiced interests protected by the speedy trial guarantee. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Prejudice will be presumed for delays of over 14 months between charge and trial. This is not to say, of course, that prejudice to the accused will be presumed in cases where the trial is delayed for a substantially shorter time. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Prejudice may be presumed where the delay between the charge and trial exceeds 14 months. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

The supreme court has attached a presumption of prejudice for delays in excess of 14 months. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Defendant made a colorable showing of a violation of his right to a speedy trial, because the unexcused delay of approximately twenty months could have been deemed to be presumptively prejudicial. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

But not for delays substantially less than 14 months. —

Where the interval between charge and trial is substantially less than 14 months, in these circumstances the supreme court will not presume prejudice from the length of the delay. The supreme court will require the defendant to demonstrate prejudice in order to prevail. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

A delay for a period substantially less than 14 months will not give rise to a presumption of prejudice. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Where a delay in bringing an accused to trial is substantially less than 14 months, the presumption of prejudice does not arise, and the accused is required to demonstrate actual prejudice in order to prevail in his assertion of denial of a speedy trial. Whitton v. State, 506 P.2d 674 (Alaska 1973).

Prejudice to interests protected by speedy trial will not be presumed where the challenged delay is substantially less than 14 months. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Although some prejudice results from an eight-month incarceration of any defendant, the question to be resolved is whether that prejudice reaches constitutional dimensions requiring reversal. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Where the delay between indictment and trial was about seven months and two weeks, and the total period of incarceration was slightly in excess of eight months, prejudice was not presumed; instead, actual prejudice was required to be shown. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Where something less than six months of a 10-month delay between indictment and trial was attributable to the state, defendant was required to show actual prejudice in order to prevail. Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Nor for delays requested by defendant. —

The period of delay necessary for the presumption of prejudice to attach shall include only a delay not attributable to the defendant. Any delays requested or agreed to directly or implicitly by the defendant shall be deducted from that period. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

In determining speedy trial claims, the supreme court would exclude those periods of time that were attributable to the defendant in its calculation of pre-trial delay. Taggard v. State, 500 P.2d 238 (Alaska 1972); Whitton v. State, 506 P.2d 674 (Alaska 1973).

Pre-trial delays after defendant dismissed his attorney and continued the case in order to secure other counsel were attributable to the defendant, not to the court, where the defendant was not relying on any representation made by the judge in connection with securing counsel. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Minor’s right to a speedy trial was not violated where the original petition alleging he had aided and abetted in the theft of a motorcycle was dismissed without prejudice because the minor wished to, and did, leave Alaska with his mother, but was refiled when the minor returned to the state several months later, since the delay that occurred between the filing of the original petition and the reinstatement of that petition was a direct result of the minor’s request that he be allowed to leave the state with his mother. R. D. S. M. v. Intake Officer, 565 P.2d 855 (Alaska 1977).

In a dog bite case, where defendant caused more than 12 of the 18 months of the trial delay, and only six months of delay could be attributed to the government, defendant’s speedy trial rights were not violated. Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289 (Alaska Ct. App. 2004).

But defendant must show prejudice in order to prevail. —

Where a pre-trial delay of 10 and one-half months was attributable to defendant, the supreme court did not presume prejudice from the length of the delay, but required that the defendant demonstrate prejudice in order to prevail. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Actual prejudice need not be shown. —

To the extent that Spight v. State , 450 P.2d 157 (Alaska 1969) may be interpreted as requiring a showing of actual prejudice before a violation of the 6th amendment right to a speedy trial is found, this notion may now be laid to rest. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The extent to which a showing of prejudice will be required in cases where a trial is delayed will depend on the facts of each case. Generally, the longer the period of delay, the more willing the court should be to find a denial of the right to speedy trial without a showing of actual prejudice to the accused. Nickerson v. State, 492 P.2d 118 (Alaska 1971); Tarnef v. State, 492 P.2d 109 (Alaska 1971).

The longer the period of delay, the more willing the court should be to find a denial of the right to speedy trial without a showing of actual prejudice to the accused. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

But anxiety, standing alone, does not necessitate dismissal. —

It would be an exceptional case where a defendant’s anxiety over his pending criminal charge, standing alone, would constitutionally necessitate dismissal of a criminal prosecution. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Defendant held not prejudiced by delay. —

Where there was no indication that witnesses necessary for defendant’s defense were unavailable at trial or that the passage of time dimmed their memories, the supreme court found that the defendant had failed to substantiate his assertion of prejudice, or that he was hindered in the preparation of his trial by the length of time between arrest on the indictment and trial. Taggard v. State, 500 P.2d 238 (Alaska 1972).

Duration of permissible delay. —

In most jurisdictions which set a statutory time limit, the permissible delay ranges between 75 days and six months. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

In Alaska, contrary to many states, there are no statutory provisions which implement speedy trial guarantees by setting a definite period within which trial must be held. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The right to speedy trial should be fixed in terms of days or months running from a specified event, excluding certain periods of necessary delay or delays at the instance of the defendant, which should also be identified precisely. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The President’s Crime Commission has recommended that no more than four months elapse between arrest and trial in felony cases. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The time between the acts charged (July 8 and 16, 1969) and the indictment (Sept. 25, 1969) was not unreasonable and did not constitute a denial of due process. McKay v. State, 489 P.2d 145 (Alaska 1971).

Eight-month sentencing delay did not violate defendant’s right to speedy sentencing, notwithstanding his argument that the delay placed a heavy strain on him and created considerable anxiety in his life. Stocker v. State, 766 P.2d 48 (Alaska Ct. App. 1988).

Fourteen months’ delay is excessive. —

See Glasgow v. State, 469 P.2d 682 (Alaska 1970); Rutherford v. State, 486 P.2d 946 (Alaska 1971); State v. Mardock, 490 P.2d 1223 (Alaska 1971).

A delay of 14 months in bringing an accused to trial, even though the prosecution was not responsible for the delay, deprives an accused of his right to a speedy trial under the Alaska Constitution. Whitton v. State, 506 P.2d 674 (Alaska 1973).

Although defendant was responsible for nine months and nine days of the total delay of 29 months and five days, since the delay not attributable to defendant exceeded the 14-month period ruled constitutionally impermissible, defendant was denied his right to a speedy trial under Alaska’s constitution. Whitton v. State, 506 P.2d 674 (Alaska 1973).

Thirty-one month sentencing delay held not speedy trial violation. —

See Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, — U.S. —, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

Thirty-nine month delay in resentencing after defendant’s original sentence had been vacated did not violate his right to a speedy sentencing, notwithstanding his argument that he was prejudiced by the delay because he was under tremendous emotional pressure while awaiting his sentencing. Holmes v. State, 765 P.2d 112 (Alaska Ct. App. 1988).

Pre-indictment delay of 20 months held reasonable. —

See Tarnef v. State, 512 P.2d 923 (Alaska 1973).

Constitutional right to speedy trial not violated. —

See Vail v. State, 599 P.2d 1371 (Alaska 1979); Conway v. State, 707 P.2d 930 (Alaska Ct. App. 1985).

When defendant claimed a five-year delay between filing an information and arrest or indictment violated the right to speedy trial, defendant's speedy trial right was not violated because defendant was primarily responsible for the presumptively prejudicial delay, greatly outweighing the State's negligence in failing to obtain an extraditable warrant, as it was not clear error to find (1) defendant departed the state upon realizing defendant was under investigation, (2) the delay did not prejudice defendant in preparing a defense, and (3) any dispute as to whether to fault defendant for failing to assert the speedy trial right was moot, as it was, at best, neutral. State v. Wright, 404 P.3d 166 (Alaska 2017).

No right to presumption of prejudice. —

Where only eight months of the 30-month delay were not “caused” by defendant, defendant was not entitled to the presumption of prejudice. Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983).

Sentencing delay held not speedy trial violation. —

See Travelstead v. State, 689 P.2d 494 (Alaska Ct. App. 1984).

The absence of a demand by the defendant, while not dispositive, should be given weight in evaluating his speedy trial claim. Gonzales v. State, 582 P.2d 630 (Alaska 1978), overruled in part, Betterman v. Montana, — U.S. —, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (U.S. 2016).

Right applies to delinquency proceedings. —

A minor who is the subject of delinquency proceedings, which could result in his incarceration, is entitled to many of the same rights protecting an adult charged with a criminal offense. Those rights include the right to a speedy trial. R. D. S. M. v. Intake Officer, 565 P.2d 855 (Alaska 1977).

Reservation of right to appeal speedy trial issue in plea of nolo contendere. —

In a case where defendant’s counsel stated at the time of the entry of the plea of nolo contendere that it was subject to a reservation of his right to appeal the speedy trial issue, though the prosecutor opposed acceptance of the conditional plea, and the trial judge indicated that he believed defendant’s right to appeal would be preserved, but declined to rule on the matter, since the defendant was not told by the court that the conditional nature of his plea was a nullity and would preserve no appellate rights, the supreme court is constrained to respect the condition. To do otherwise would likely render mean the plea was not intelligently made and was invalid. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

A plea of nolo contendere is a waiver of all non-jurisdictional defects. Violation of one’s right to a speedy trial is non-jurisdictional. However, the supreme court has allowed appeals following pleas of nolo contendere or guilty which are expressly conditioned on the right to appeal from rulings which do not involve jurisdictional issues. This has been done where the prosecutor and the trial court have consented to the conditional nature of the plea, and where they do not consent, but the court failed to advise the defendant that his conditional plea did not preserve his right to appeal. Deacon v. State, 575 P.2d 1225 (Alaska 1978).

Application for reduction of bail will usually provide adequate protection for a defendant’s interest against prolonged pretrial incarceration. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Severe remedy of dismissal of indictment with prejudice may be necessary in cases where pretrial incarceration is so lengthy that, even without impaired defense ability, fundamental unfairness would occur by further subjection of the accused to the prosecutorial power of the state. Nickerson v. State, 492 P.2d 118 (Alaska 1971).

Reversal and dismissal with prejudice is the proper remedy for the denial of speedy trial. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Incarceration during period of delay. —

Whether or not the accused is incarcerated during the period of alleged delay is not dispositive of the issue of denial of a speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While accused may not be incarcerated during the period between arrest and trial and may not be able to prove actual harm to his ability to defend himself, this does not mean that he suffered no injury because of the delay. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Suspension of prosecution. —

An accused is not relieved of the limitations placed upon his liberty by his prosecution merely because its suspension permits him to go whithersoever he will. The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the anxiety and concern accompanying public accusation, the criminal procedure denies the accused the right to a speedy trial which is guaranteed to him by the 6th amendment of the Constitution of the United States.Rutherford v. State, 486 P.2d 946 (Alaska 1971).

Waiver. —

The theory behind Goss v. State , 390 P.2d 220 (Alaska), cert. denied, 379 U.S. 859, S. Ct. 118, 13 L. Ed. 2d 62 (1964), was that the right to speedy trial is a personal right of the accused which may be waived through mere inaction. In light of the supreme court’s present interpretation of the speedy trial provision of the Alaska Constitution and the authorities it has discussed on the issue of waiver of fundamental constitutional rights, it is clear that Goss v. State is no longer tenable either in its holding or its underlying theory. To the extent that it bears upon the right to speedy trial, Goss is overruled. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The waiver doctrine, based on the failure to make a demand, is of particularly dubious authenticity under present constitutional law. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The requirement of a demand, the showing of prejudicial harm to the defendant’s case, and the implication of a waiver from the defendant’s failure to make a demand arguably are no longer determinative of the claim to a speedy trial. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While the presence of a demand or a showing of prejudice to one’s case can only help the claim, their absence alone will not necessarily frustrate the right to a speedy trial, including the right to a dismissal of the charges with prejudice when there has been a clear denial of this constitutional right. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The doctrine that failure of an accused to demand a speedy trial constitutes a waiver is rejected. Rutherford v. State, 486 P.2d 946 (Alaska 1971).

A waiver of the right to a speedy trial is not to be inferred from mere silence unless that silence is for some tactical purpose. Glasgow v. State, 469 P.2d 682 (Alaska 1970); Rutherford v. State, 486 P.2d 946 (Alaska 1971).

The courts indulge every reasonable presumption against waiver of constitutional rights. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

No acquiescence can be presumed in the loss of fundamental rights. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Waiver of speedy trial right for specifically defined period, as opposed to a waiver using open-ended language. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).

Continuance. —

Unless the resulting delay is purposeful, oppressive, or prejudicial to the defendant, the granting of a continuance is not a violation of the defendant’s constitutional right to a speedy trial. Spight v. State, 450 P.2d 157 (Alaska 1969); Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Probation may be revoked where charges dismissed for lack of prosecution. —

Probation may be revoked even though the basis for the revocation arises out of charges that have been dismissed for lack of prosecution under speedy trial standards. Paul v. State, 560 P.2d 754 (Alaska 1977).

Probation revocation hearing some six months after the violation of the conditions of probation was not in error. Paul v. State, 560 P.2d 754 (Alaska 1977).

C.Public

Public trial is an institutional safeguard. —

Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and “public trial” is an institutional safeguard for attaining it. Thus, the right of “public trial” is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered. RLR v. State, 487 P.2d 27 (Alaska 1971).

A public trial safeguards against attempts to employ the courts as instruments of persecution, restrains abuse of judicial power, brings the proceedings to the attention of key witnesses not known to the parties, and teaches the spectators about their government and gives them confidence in their judicial remedies. RLR v. State, 487 P.2d 27 (Alaska 1971).

The guarantee of public trials fosters and preserves at least three important societal values; two of these primarily protect a defendant’s right to a fair trial, while the third involves society’s broader interest in preserving social cohesion and the public peace by allowing citizens to assure themselves that justice is being done. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 1994).

Exclusion of the general public while testimony was given by three child victims at defendant’s trial for sexual abuse was a “total” closure in the sense that it was closed to all spectators, and reversal of defendant’s conviction was warranted, even in the absence of a specific claim of prejudice flowing from the closure. Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).

Secret trials prohibited. —

The due process clause of the 14th amendment prohibits secret trials in criminal proceedings. RLR v. State, 487 P.2d 27 (Alaska 1971).

Closed courtroom during child victims’ testimony. —

Trial court did not violate child sex abuse defendant’s right to a public trial when she had court personnel post a “closed hearing” sign on the courtroom door, so that no additional people would enter the courtroom while the three young child victims were on the stand. Anderson v. State, 289 P.3d 1 (Alaska Ct. App. 2012), reaff'd, 337 P.3d 534 (Alaska Ct. App. 2014).

Prison trials subject to strictest scrutiny. —

The Alaska Constitution does not categorically prohibit holding a criminal trial in a prison; however, any decision to hold a trial in a prison must be subjected to the strictest scrutiny, and must be supported by compelling reasons. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 1994).

Prison trial was unconstitutional. —

Defendant’s due process rights were violated by judge’s unjustified decision to move defendant’s trial to the prison. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 1994).

Rule requiring exclusion of public not adopted. —

The supreme court declined to adopt a rule under the state constitution that would require exclusion of the public from particular judicial proceedings. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Right to public trial is right of accused only. Geise v. United States, 265 F.2d 659 (9th Cir. Alaska 1959).

Children are guaranteed the right to a public trial by the Alaska Constitution. RLR v. State, 487 P.2d 27 (Alaska 1971).

Due process requires that children have the right to a public trial by jury where they are charged with acts which would be a crime if committed by an adult. Doe v. State, 487 P.2d 47 (Alaska 1971).

The fundamental constitutional right of public trial by jury must be afforded children in delinquency adjudication proceedings, in spite of the possible interference with the benevolent motives of the children’s court system which have, in the past, justified denial of those rights. Doe v. State, 487 P.2d 47 (Alaska 1971).

The reasons for the constitutional guarantees of public trial apply as much to juvenile delinquency proceedings as to adult criminal proceedings. RLR v. State, 487 P.2d 27 (Alaska 1971).

Unintentional brief exclusion of a newspaper reporter from part of the reading back to the jury of a section of testimony previously given, when at least one other spectator was present, did not deny the right to public trial. RLR v. State, 487 P.2d 27 (Alaska 1971).

Public trial before judge other than one reviled by contemnor. —

A defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor. State v. Browder, 486 P.2d 925 (Alaska 1971).

Unauthorized instructions constituting denial of right to “public trial.” —

See Noffke v. State, 422 P.2d 102 (Alaska 1967).

D.Impartial

Purpose of impartial jury. —

As a protection or barrier against the exercise of arbitrary power, the people of this state, in adopting the Alaska Constitution, guaranteed the right to be tried by an impartial jury of 12. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common-sense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Composition of jury. —

The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Jury must be “impartial”. —

A jury under the Alaska Constitution must be an “impartial” one. This is an expression of the notion of what a proper jury is — a body truly representative of the community. Such a notion is in keeping with the basic, traditional concept of a democratic society and representative government. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970); Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Failure to provide accused with an impartial jury constitutes a denial of his constitutional right to due process of law. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The extension to the states of the 6th amendment right to jury trial necessarily comprehends the guarantee that juries shall be impartial. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Representation of a fair cross section of the community on the jury list is an essential prerequisite to an impartial jury under the Alaska Constitution. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The constitutional standard in jury selection will be met if prospective jurors are drawn from a fair cross section of the community. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970); Alvarado v. State, 486 P.2d 891 (Alaska 1971).

An individual should not be forced, against his will, to stand trial before a jury which has been selected in such a manner as to exclude a significant element of the population of the community in which the crime was allegedly committed. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

It is well established that the right to an impartial jury trial guaranteed in criminal proceedings by the 6th amendment to the United States Constitution and this section embraces the concept of trial by a jury constituting a fair “cross section of the community.” Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

The key question addressed in constitutional challenges to jury selection is whether the prospective jurors were drawn from a fair cross section of the community. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Trial court abused its discretion when it refused to delay jury selection until after a storm abated because this violated the right to an impartial jury; the inclement weather prevented a particular contingent of the jury pool from attending court. Because the same inclement weather prevented the State’s primary witnesses from attending court, there would have been little additional delay if the trial court had delayed jury selection. Napoka v. State, — P.3d — (Alaska Ct. App. Aug. 7, 2013) (memorandum decision).

The contours of fair cross section of community are elusive and, indeed, they may not be susceptible of precise definition. Alvarado v. State, 486 P.2d 891 (Alaska 1971); Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Failure to seek continuance. —

Because defendant did not ask for a continuance so that additional village jurors could supplement the venire, the judge did not err in denying his mistrial motion; defense counsel never contended in the trial court that the jury list was unrepresentative of the community. Thiele v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018) (memorandum decision).

All differences among individuals need not be recognized. —

All differences among individuals, or every conceivable group in the community, need not be recognized for the purpose of representation on juries. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Social and cultural differences insufficient. —

Proof of social and cultural differences between location of defendant’s proposed change of venue and the rest of the state would not in and of itself be sufficient to require a change of venue. Dana v. State, 623 P.2d 348 (Alaska Ct. App. 1981), overruled in part, Booth v. State, 251 P.3d 369 (Alaska Ct. App. 2011).

Common-law vicinage. —

Vicinage in the historical sense is no longer a formal requirement. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The Alaska Constitution contains no formal provision for a jury of the vicinage. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The source of prospective jurors need not in all instances include residents of the place in which the crime was allegedly committed, for it is conceivable that the source of prospective jurors may exclude the scene of the alleged offense, yet still reasonably represent a cross section of the community which includes the scene of the offense. Thus, several decisions imply that selection of prospective jurors from a restricted area within a judicial district, even if the scene of the crime is omitted from that area, will be acceptable if there is no indication that the population of the restricted area differs significantly from the population of entire district. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The traditional starting point for determining the community from which jurors are to be selected is the scene of the alleged offense. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Determination of the method for selecting juries is a matter within the legislative prerogative, and the 1969 amendment to AS 09.20.050 was a lawful exercise of legislative authority. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

AS 09.20.050 designates Alaska’s four judicial districts as outer community boundaries for the purpose of selecting prospective jurors. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

It is manifest that the legislature, under AS 09.20.050 , intended Alaska judicial districts to comprise communities from which juries could be selected. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Judicial districts are not necessarily the only acceptable communities for the purpose of jury selection. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The practice of selecting jurors from more limited areas within Alaska judicial districts has been upheld. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

It is the community in which the crime was committed that the jury must represent. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The area surrounding location of the crime may be excluded from the source of selection when it appears that an unbiased jury could not be drawn therefrom. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Selecting jurors for cases arising within urban centers. —

For cases arising from crimes allegedly committed within the various urban centers of Alaska, the maintenance of geographical limits currently in force will be acceptable, provided, of course, that selection within the given areas is not itself discriminatorily conducted. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

And for cases arising outside urban and nonnative centers. —

As for cases arising outside the urban and predominately nonnative centers of Alaska, two acceptable and feasible alternatives may be employed in selecting jurors. First, jurors may be selected from among residents of the entire judicial district in which the crime is alleged to have occurred. A second alternative, one which is perhaps at the same time more desirable and more workable than the first, would be selection of jurors from the senate election district in which the crime is alleged to have occurred. Either of these alternatives would be calculated to produce jury panels satisfying the constitutional requirement of impartiality. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Relocation of trial due to defendant’s exercise of peremptory challenge. —

The fact that defendant’s trial jury was not representative of a fair cross section of the community in which the crime allegedly occurred was not error where as a result of defendant’s exercise of a peremptory challenge of the superior court judge who was originally assigned to try his case, the trial had been relocated to a judicial area which did not include the village that defendant lived in and in which the crime allegedly occurred. Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Selection within 50-mile radius would cause unreasonable transportation expenses. —

Departure from the provisions of Cr. R. 24.1 (rescinded), providing that a petit jury be selected from within a 50-mile radius of the urban center designated as the site of the criminal trial, because such selection would cause unreasonable transportation expenses did not deny defendant a jury representative of a fair cross section of the community, where jurors were drawn from a 30-mile radius instead, even assuming that the excluded occupants of native villages were a distinctive or “cognizable” group, the supreme court could not assume that the automatic exemption reflected a systematic exclusion. Therefore, defendant failed to show that representation of this cognizable group in his venire was not fair and reasonable under the Alaska and United States Constitutions. Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Fair cross section standard not necessarily compelled in civil trials. —

Neither the supreme court nor the United States supreme court has clearly held that the “fair cross section” standard is constitutionally compelled in civil trials. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

No right to favoritism toward accused. —

There is no constitutional right to a jury composed of a cognizable group that would tend to be “partial” or biased or prejudiced against the state and in favor of the accused in a criminal case. Webb v. State, 580 P.2d 295 (Alaska 1978).

Jurors from defendant’s religious community. —

Defendant did not meet his burden of proving that his right to a jury drawn from a fair cross-section of the community was violated because the jury selection procedure excluded all residents of his community and a fortiori all of the members of what he contended was a cognizable group, i.e. caucasian members of the Russian Orthodox church who resided in the community where Russian Orthodox parishes existed in both defendant’s community and the area from which the jury was selected and were served by the same priest, and defendant had failed to prove that whatever common attitudes, ideas, or experience which members of the Russian Orthodox church have would not be adequately represented by the members of the church in the area from which the jury was selected. Kelly v. State, 652 P.2d 112 (Alaska Ct. App. 1982).

Unconstitutionally defective jury. —

Under the strict criminal trial standards of impartiality, for a constitutional defect to exist in a jury, the method of choosing must be one that purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that a particular jury does not include a representative from all segments of the local population. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Although the contours of a fair cross section of the community are elusive and may not be susceptible to precise definition, any method of jury selection which is in reality a subterfuge to systematically and intentionally exclude some cognizable group or class of citizens in the community is clearly invalid. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Any method of jury selection which is in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Before the supreme court will find constitutional error in the jury selection process, the accused must establish: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Jury selection procedures held inadequate. —

See Erick v. State, 642 P.2d 821 (Alaska Ct. App. 1982).

Proof of systematic and intentional discrimination. —

While the courts have recognized that the only practical way a litigant may prove systematic and intentional discrimination is by showing a consistent lack of proportional representation through proof of objective results of the jury selection process, these cases all involved proof of objective results over a long period of time and with reference to a large number of juries. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

The mere fact that there were no blacks on either jury in a particular case would not establish a prima facie case of unconstitutional discrimination. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

The exclusion of all daily wage earners is inconsistent with the notion of a jury representing a cross section of the community. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Systematic exclusion of women effectively negates the possibility of a jury representing a fair cross section of the community. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Exclusion of certain military personnel. —

Exclusion from jury service of military personnel claiming a domicile outside Alaska did not constitute plain error since defendant failed to show that such military personnel represented a cognizable group of persons constituting a particular economic, social, religious, racial, geographical or political group in the community and no common thread or basic similarity in attitudes or ideas or experiences had been shown as giving rise to a bias against defendant as a defendant-member of the excluded class. Walker v. State, 652 P.2d 88 (Alaska 1982).

Voting list method of selection. —

There is nothing to indicate that under the voting list method of selection, a fair cross section of the community is not represented, nor that there is a systematic and intentional exclusion of a particular, cognizable group of persons. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Residency requirements for jurors. —

The practice of a judicial district to select as jurors only those persons who have been residents of Alaska for one year or more did not deprive defendant of his statutory and constitutional right of an impartial jury and was not in violation of his rights to equal protection of the laws, which rights are guaranteed by the 14th amendment to the federal constitution and Alaska Const., art. I, § 1. Webb v. State, 580 P.2d 295 (Alaska 1978).

Sentence greater than presumptive. —

When trial court imposed a sentence greater than the presumptive, defendant’s right to an impartial jury was violated; however, even though an aggravator should have been submitted to the jury, the error was held to have been harmless. Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006).

Motion to correct sentence was properly denied because any Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, right to jury trial error was rendered harmless by the trial court’s finding of an aggravator under AS 12.55.155(c)(20) , based on defendant’s stipulation because the underlying facts were not in dispute, that he was on felony parole at time of his felony driving under the influence offense under AS 28.35.030(n) , so an agreed-upon five-year sentence could be lawfully imposed under AS 12.55.125(e)(2) and 12.55.145(a)(1)(B) . Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007).

Acceptability of potential juror. —

To better protect a defendant’s right as guaranteed by the state constitution, the supreme court adopted standard 8-3.5(b) of the American Bar Association Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, which provides: Both the degree of exposure and the prospective juror’s testimony as to state of mind are relevant to the determination of acceptability. A prospective juror testifying to an inability to overcome preconceptions shall be subject to challenge for cause no matter how slight the exposure. If the prospective juror remembers information that will be developed in the course of the trial, or that may be inadmissible but does not create a substantial risk of impairing judgment, that person’s acceptability shall turn on the credibility of testimony as to impartiality. If the information of an opinion is admitted, the prospective juror shall be subject to challenge for cause unless the examination shows unequivocally the capacity to be impartial. A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror’s testimony as to state of mind. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Use of prior criminal conviction to impeach defendant’s credibility does not deny him equal protection of the laws, does not violate the privilege against self-incrimination, and does not deprive him of a fair and impartial jury. Lowell v. State, 574 P.2d 1281 (Alaska 1978).

Failure to grant challenges while impaneling jury. —

Where a number of jurors were familiar with the witnesses in the case, and several jurors were exposed to prejudicial pretrial information, the trial court’s failure to grant challenges while impaneling the jury raised a substantial doubt whether defendant was tried by an impartial jury, necessitating reversal of his conviction. Nelson v. State, 781 P.2d 994 (Alaska Ct. App. 1989).

Where none whom defendant unsuccessfully challenged for cause actually served on the jury, the impartial jury guarantee was fully protected. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Juror impartiality. —

Trial judge properly assessed the credibility of prospective jurors in a murder and sexual assault trial that received extensive pre-trial publicity; appellate court found no substantial reason to doubt the impartiality of the chosen jurors, and trial court did not abuse its discretion in refusing to change venue on this basis. Harmon v. State, 193 P.3d 1184 (Alaska Ct. App. 2008).

When change of venue or continuance granted. —

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. A showing of actual prejudice shall not be required. Mallott v. State, 608 P.2d 737 (Alaska 1980).

It was not an abuse of discretion for the trial judge to decide to stop jury selection in a small community due to the difficulty experienced in seating jurors because of local knowledge among the jurors, and widespread disqualifying relationships between the prospective jurors and the participants in the alleged crime. Ward v. State, 997 P.2d 528 (Alaska Ct. App. 2000).

Burden on party requesting change. —

When the trial court complies with the provisions of this section and Cr. R. 18.1(a) (rescinded), a party requesting a change of venue based on Alvarado v. State , 486 P.2d 891 (Alaska 1971), will have the affirmative burden of establishing that systematic exclusion from the jury of a distinct group or class of persons will occur unless venue is changed. Dana v. State, 623 P.2d 348 (Alaska Ct. App. 1981), overruled in part, Booth v. State, 251 P.3d 369 (Alaska Ct. App. 2011).

The burden is upon the state to show that it was not reasonable to obtain a jury of 12 from an area once that area had been selected as the site of the trial. Erick v. State, 642 P.2d 821 (Alaska Ct. App. 1982).

The burden is on the defendant to show that a “distinctive” or “cognizable” group has been systematically excluded in the jury selection process. Erick v. State, 642 P.2d 821 (Alaska Ct. App. 1982).

In order to be entitled to an evidentiary hearing on a claim that a systematic exclusion from the jury of a distinct group or class of persons will occur unless venue is changed, the moving party should at a minimum be prepared to make a clear and nonconclusory showing, by affidavit or other reliable offer of proof, that the party is capable of producing evidence which, if true, would require venue to be changed. Dana v. State, 623 P.2d 348 (Alaska Ct. App. 1981), overruled in part, Booth v. State, 251 P.3d 369 (Alaska Ct. App. 2011).

Reversible error. —

In the absence of “inherently prejudicial pre-trial publicity” so inflammatory that a subsequent trial in that locale would be, or would appear to be, but a hollow formality, the supreme court will not find reversible error merely because the trial judge chose to proceed with voir dire to determine the impact of the publicity. Mallott v. State, 608 P.2d 737 (Alaska 1980).

III.Information

Accused must be informed of charges. —

Nothing is more fundamental to Alaska’s system of justice than the requirement that the accused be informed of the charges against him. Alto v. State, 565 P.2d 492 (Alaska 1977).

IV.Bail

Legislative history of this section. —

See Martin v. State, 517 P.2d 1389 (Alaska 1974).

Society’s interest in pretrial freedom for persons accused of crimes is strong. Doe v. State, 487 P.2d 47 (Alaska 1971).

The presumption of innocence, central to a state’s system of criminal justice, dictates in favor of pretrial release. Doe v. State, 487 P.2d 47 (Alaska 1971).

Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. Doe v. State, 487 P.2d 47 (Alaska 1971).

Central consideration with respect to pretrial release. —

In adult criminal prosecutions, the central consideration with respect to pretrial release is whether the defendant will appear for trial. This is true for setting the amount of bail and for ruling on applications to be released on one’s own recognizance. Doe v. State, 487 P.2d 47 (Alaska 1971).

The purpose of bail in the administration of criminal justice is to insure the defendant’s appearance at trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Excessive bail may not be imposed under either the United States or Alaska constitutions. Doe v. State, 487 P.2d 47 (Alaska 1971).

“Excessive bail.” —

Excessive bail has been held to be that which goes beyond the amount reasonably necessary to assure the defendant’s presence at trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Security for bond. —

The right to release is heavily favored and the requirement of security for the bond may, in a proper case, be dispensed with. For there may be other deterrents to jumping bail: Long residence in a locality, the ties of friends and family, the efficiency of modern police. All these in a given case may offer a deterrent at least equal to that of the threat of forfeiture. Doe v. State, 487 P.2d 47 (Alaska 1971).

All persons accused of a criminal offense are entitled to be released on bail. Doe v. State, 487 P.2d 47 (Alaska 1971).

No release for capital offenses where the proof is evident or the presumption great. See Doe v. State, 487 P.2d 47 (Alaska 1971).

The Alaska Constitution without doubt guarantees to every accused person the right to be released on bail, except for capital offenses where the proof is evident or the presumption great. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Since there are no capital offenses in Alaska at this time, every criminal offense carries the right to bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Implied limitation on right to bail would contravene section. —

An implied limitation on the right to bail would necessarily contravene both the plain language of this constitutional provision and its intended purpose as stated at the constitutional convention. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Order denying bail to one accused of a crime, but not yet convicted, is in violation of this section and the provisions of the Alaska Bail Reform Act. Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Release on indigent’s own recognizance. —

An indigent defendant does not have an absolute right to be released on his own recognizance prior to trial. Reeves v. State, 411 P.2d 212 (Alaska 1966); Gilbert v. State, 540 P.2d 485 (Alaska 1975).

While an adult criminal defendant has a constitutional right to be released on bail (except in certain capital cases), he does not have an absolute right to be released on his own recognizance, without bail, if he is financially unable to post the bond. Doe v. State, 487 P.2d 47 (Alaska 1971).

A child has the right to remain free pending adjudication that the child is delinquent, dependent, or in need of supervision, where the facts supporting the petition involve an act which, if committed by an adult, would be a crime, and where the court has been given reasonable assurance that the child will appear at future court proceedings. If the facts produced at the inquiry show that the child cannot return or remain at home, every effort must be made to place the child in a situation where his freedom will not be curtailed. Only if there is clearly no alternative available may the child be committed to a detention facility and deprived of his freedom. Doe v. State, 487 P.2d 47 (Alaska 1971).

Considerations in determining amount of bail. —

Although trial judge may not deny bail to an accused prior to conviction, he can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Evidence in bail proceedings to the effect that an accused is a danger to the community has been decreed relevant by the legislature for the purpose of determining either the amount of bail or conditions of release. Carman v. State, 564 P.2d 361 (Alaska 1977).

On remand, trial court was ordered to reconsider bail for defendant as it could not be discerned from the record why the trial court believed that bail in amounts totaling $ 1,300,000 was the least restrictive bail necessary in light of the otherwise structured and restrictive supervision plan in place; it also did not appear that the trial court meaningfully integrated the consideration of defendant's ability to pay. Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018).

Bail amount constituted abuse of discretion. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

Alaska Const., art. I, § 12 to be considered. —

The excessive bail provision in § 12 of this article insures the fixing of a reasonable bail and is to be considered in conjunction with the right to bail provision of this section. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Opportunity to raise bail before booking. —

When one is arrested and brought to a jail for a minor offense for which bail has already been set in a bail schedule, he should be given a reasonable opportunity to post bail before being booked and searched. This rule should normally be followed unless exigencies demand a different course of action. Zehrung v. State, 573 P.2d 858 (Alaska 1978).

The ability of an arrestee to obtain a prompt release by posting bail for a petty offense should not depend on the fortuitous circumstance of one having sufficient money on his person to post the bail at the time he arrives at the jail. Many people do not carry much cash on their person. Those persons should be permitted access to a telephone in order to get in touch with a relative, an employer, a friend, or an attorney, who could come to the stationhouse within a reasonable time and put up the necessary bail. Whether circumstances justify a variance will depend on the particular facts involved. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Where a jail had been provided with a bail schedule for petty offenses, the purpose of which was to afford an arrestee the opportunity to avoid incarceration by posting the established bail without need to appear before a magistrate, if one is arrested for a petty offense and has sufficient funds on his person to post the established bail when brought to the jail facility, he should be released immediately. There is no reason to subject such an arrestee to booking procedures with the resultant inventory search of his person since he is not to be incarcerated. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

No right to post-conviction bail. —

The bail clause in the Alaska Constitution does not afford a right to post-conviction bail. State v. Wassillie, 606 P.2d 1279 (Alaska 1980).

Criminal defendants are not guaranteed the right to post-conviction bail by either the Eighth Amendment to the Unites States Constitution or Article I, Section 12 of the Alaska Constitution.Hosier v. State, 976 P.2d 869 (Alaska Ct. App. 1999).

No right of bail to probation revocation proceedings under this section. Martin v. State, 517 P.2d 1389 (Alaska 1974).

This section guarantees the accused in a criminal prosecution the right to bail. However, a probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Bail should be withheld pending revocation proceedings only in unusual cases. Martin v. State, 517 P.2d 1389 (Alaska 1974).

The denial of bail may constitute a needless disruption of the probation process negating the program’s objectives of rehabilitation and eventual integration into society. Martin v. State, 517 P.2d 1389 (Alaska 1974).

1967 amendments to AS 12.30.020 providing for release of a person charged with an offense before trial do not permit the detention of persons without bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

The 1967 amendments to AS 12.30.020(a) and 12.30.020(b)(6) added another factor, “danger to the community,” to be considered in determining whether an accused person is entitled to be released on personal recognizance or on an unsecured appearance bond and in determining whether additional conditions should be imposed on a defendant, respectively. Neither provision may be read as empowering a judicial officer to deny bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Denial of bail prior to conviction is unconstitutional. —

Former AS 12.30.011(d)(2) (amended 2018) is unconstitutional as it presumes that a defendant cannot be released on bail, and Alaska Const. art. I, § 11, contains a specific guarantee of pre-conviction bail. Hamburg v. State, 434 P.3d 1165 (Alaska Ct. App. 2018).

Court may not conduct in camera bail hearings. —

Neither Alaska’s Bail Reform Act, AS 12.30, nor the Rules of Criminal Procedure authorize the trial courts of Alaska to conduct in camera bail hearings. Carman v. State, 564 P.2d 361 (Alaska 1977).

Acceptance of ex parte in camera evidence in conjunction with bail hearings is antithetical to well established concepts of a fair adversarial hearing. Carman v. State, 564 P.2d 361 (Alaska 1977).

Rather, accused is entitled to confront all witnesses. —

Alaska’s Bail Reform Act, AS 12.30, contemplates a hearing at which bail matters are to be determined. At such hearings, the accused is entitled to confront all witnesses who have given testimony regarding the amount of bail, or the terms and conditions of bail, as well as to refute such testimony and to present rebuttal evidence. Carman v. State, 564 P.2d 361 (Alaska 1977).

The setting of bail at a Cr. R. 5 proceeding is not an adversary confrontation wherein potential substantial prejudice to the defendant’s basic right to a fair trial inheres, but rather is limited to the issue of interim confinement. Moreover, bail may be reviewed by appointed counsel as soon as 24 hours after the initial determination. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Independent assessment of conditions of release required. —

At a first bail review hearing, a judicial officer is required to assess a defendant's conditions of release anew; at a defendant's first bail review hearing, a court is required to conduct an independent assessment of the defendant's conditions of release, and the court may not simply defer to the bail conditions imposed at a defendant's first court appearance. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

V.Confrontation

Right generally. —

The constitution forbids denying the accused face-to-face confrontation with an accuser in a criminal trial absent specific evidence and an express finding that the probable effect of the defendant’s presence on the witness would significantly impair the substance of the witness’s testimony. A mere finding of some general, or de minimis, effect will not suffice. Likewise, generalized, subjective impressions or assumptions will not substitute for case-specific evidence. Blume v. State, 797 P.2d 664 (Alaska Ct. App. 1990).

The right of confrontation is a fundamental right essential to a fair trial in a criminal prosecution. Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969).

And existed at common law. —

The right of a defendant to be present at all stages of the proceedings existed at common law. Lee v. State, 509 P.2d 1088 (Alaska 1973).

It has been implemented by Cr. R. 38. —

The right of confrontation conferred by this section and the 6th amendment to the United States Constitution has been implemented by Alaska Cr. R. 38, which is essentially similar to Fed. R. Crim. P. 43. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Right limited to criminal trials. —

The constitutional right of an accused to confront and cross-examine the witness against him is expressly limited to criminal trials. Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989).

Right to confrontation. —

Trial court did not err in admitting the statements a wife made to a police officer because the Confrontation Clause of the Alaska constitution does not bar the admission of such statements. Luch v. State, 413 P.3d 1224 (Alaska Ct. App. 2018).

Enforcement of right. —

The confrontation guarantee of the 6th amendment is enforceable against the states under the 14th amendment according to the same standards employed in the federal system. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Sixth amendment applicable to states. —

Since 1965, the 6th amendment has been fully applicable to the states under the due process clause of the 14th amendment to the United States Constitution.Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Supreme court not bound by United States Supreme Court’s interpretation of section. See Lemon v. State, 514 P.2d 1151 (Alaska 1973).

A criminal defendant has the right to confront the witnesses against him. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

This section guarantees an accused the right of confrontation in all criminal matters, which entails the right of cross-examination. Evans v. State, 550 P.2d 830 (Alaska 1976).

Purpose of confrontation. —

The main and essential purpose of the provision that the accused has the right to be confronted with the witnesses against him is to secure for the accused the right of cross-examination. McBride v. State, 368 P.2d 925 (Alaska 1962), cert. denied, 374 U.S. 811, 83 S. Ct. 1702, 10 L. Ed. 2d 1035 (U.S. 1963).

The right of confrontation is meant to protect the defendant’s interest in being able to test, by cross-examination, the testimony of those appearing against him. Lanier v. State, 486 P.2d 981 (Alaska 1971); Keith v. State, 612 P.2d 977 (Alaska 1980).

The primary interest served by this section is to afford a defendant the right of cross-examination. Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969).

The right to confrontation generally serves to give a defendant charged with crime an opportunity to cross-examine the witnesses against him and to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of the prior statement. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Confession of accomplice implicating criminal defendant is not a firmly rooted exception to the hearsay rule. Thus, “particularized guarantees of trustworthiness” must be shown before the requirements of the confrontation clause can be met. In determining whether “particularized guarantees of trustworthiness” exist, the totality of the circumstances must be considered; however, the relevant circumstances include only those that surround the making of the statement and render the declarant particularly worthy of belief. Linton v. State, 880 P.2d 123 (Alaska Ct. App. 1994), reaff'd, 901 P.2d 439 (Alaska Ct. App. 1995).

Effect of out-of-court testimony. —

Except pursuant to one of the constitutionally acceptable exceptions to the hearsay rule, the use of out-of-court testimony “would reduce the right of cross-examination guaranteed by the confrontation clause to a nullity.” Blue v. State, 558 P.2d 636 (Alaska 1977).

In a murder-arson trial, defendant’s confrontation rights were not violated by the trial court’s admission of hearsay statements of his wife and a third party implicating both defendant and his wife in the crimes. The third-party witness was available at trial for cross-examination; whereas, the recorded statements of the wife possessed guarantees of trustworthiness that satisfied defendant’s confrontation rights. Porterfield v. State, 68 P.3d 1286 (Alaska Ct. App. 2003).

Applicability of rights. —

Although the rights to confrontation and cross-examination traditionally arise in response to witness testimony, they also apply to other evidence. Catlett v. State, 585 P.2d 553 (Alaska 1978).

The right of confrontation applies not only to witness testimony, but also to other evidence which the prosecution seeks to introduce against the accused. Keith v. State, 612 P.2d 977 (Alaska 1980).

Where photographs taken of the location where stolen property was found were not introduced into evidence nor were they utilized at trial nor did the police who took the pictures prepare their testimony from these photographs, the foundation for the confrontation and cross-examination rights, i.e., the utilization or introduction of evidence or the taking of testimony based on that evidence, was not present. Catlett v. State, 585 P.2d 553 (Alaska 1978).

Where the state did not seek to introduce any evidence of the victim’s character; it was the defense which raised the victim’s possible insanity and potential for violence in the form of the affirmative defenses of justifiable or excusable homicide, defendant’s attempt to introduce a journal kept by the victim did not serve to “confront” any evidence the prosecution was offering. Keith v. State, 612 P.2d 977 (Alaska 1980).

Right applies to children’s proceedings where incarceration is possible. —

The right of confrontation applies to children’s proceedings in which the child is charged with misconduct for which he may be incarcerated. P.H. v. State, 504 P.2d 837 (Alaska 1972).

A minor is entitled to various constitutional procedural protections, including the confrontation right. In re J. H. B., 578 P.2d 146 (Alaska 1978).

Rearranging the seating of a minor for purposes of testifying. —

A defendant’s constitutional right to confront the witnesses against him was not violated where, in his trial for assault on his wife, his son testified from a smaller chair arranged perpendicular to where the defendant was sitting, and the trial judge’s finding that the child’s position relative to his father was “not really different from where their positions would be if he were in the regular witness chair” was not clearly erroneous. Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992).

The right of confrontation protects two vital interests of defendant. First, it guarantees him the opportunity to cross-examine the witnesses against him so as to test their sincerity, memory, ability to perceive and relate, and the factual basis of their statements. Second, it enables the defendant to demonstrate to the jury the witness’ demeanor when confronted by the defendant so that the inherent veracity of the witness is displayed in the crucible of the courtrooms. Lemon v. State, 514 P.2d 1151 (Alaska 1973); Blue v. State, 558 P.2d 636 (Alaska 1977); Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Contemporaneous cross-examination not required. —

The interests protected by the right of confrontation are not so absolute that they require that each witness’ statements be subject to contemporaneous cross-examination. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Right to effective cross-examination is generally essential. —

While the demeanor interest of the right of confrontation is not a crucial element, the right to effective cross-examination is essential unless the testimony falls within certain established exceptions to the hearsay rule. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Right to cross-examine declarant is not indispensable element of the confrontation clause, in certain narrow instances, where testimony is admitted via an established exception to the hearsay rule. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Certain narrowly-defined exceptions to the hearsay rule may satisfy the confrontation clause even in the absence of cross-examination, in the light of the factual circumstances of the case. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

In general, out-of-court statements which are admitted for nonhearsay purposes or long-established exceptions to the hearsay rule do not violate the accused’s right to confront the prosecution’s witnesses. Betts v. State, 799 P.2d 325 (Alaska Ct. App. 1990), cert. denied, Hinchey v. Arizona, 499 U.S. 963, 111 S. Ct. 1589, 113 L. Ed. 2d 653 (U.S. 1991).

Admission of excited utterance. —

The trial court did not violate the defendant’s right to confront the witnesses against him by allowing testimony as to an excited utterance made by a witness who was willing to testify but not called by the defendant. Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992).

Prior statement by a witness may be admissible as substantive evidence where the declarant is testifying at the present hearing and admits having made a prior statement, or where he is testifying favorably to the defendant and denies the prior statement. In either case, the defendant has the right effectively to examine the declarant regarding the circumstances surrounding the statement, and the jury has the opportunity to judge the declarant’s demeanor. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Prior testimony given at a hearing where the defendant had the effective right to cross-examine the declarant is admissible at a subsequent trial where the declarant is actually unavailable or is testifying but effective cross-examination is impaired by the declarant’s lack of recollection as to the statement. In these instances, the interest in displaying the declarant’s demeanor to the jury may not be fully protected since the cross-examination does not occur before the jury. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

The confrontation clauses of the state and federal constitutions have been interpreted to permit the prosecution to use prior testimony of witnesses who cannot be located only if the state has exercised due diligence in trying to find them. Green v. State, 579 P.2d 14 (Alaska 1978).

Hearsay statements of child victim. —

In a criminal prosecution for sexual abuse of a minor, the court was permitted to hear evidence of the child-victim’s hearsay statements of the abuse without violating defendant’s right of confrontation. Vaska v. State, 74 P.3d 225 (Alaska Ct. App. 2003).

Hearsay testimony held not admissible. —

Hearsay testimony of an alleged accomplice’s statements when the declarant was not available for effective cross-examination due to the privilege against self-incrimination was held not admissible. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Where, at trial, two officers testified on behalf of the state to statements made by an individual to defendants to the effect that a third person had told that individual that the defendants had robbed a club, which statements defendants denied, and where neither the individual who made the statement nor the third person testified at trial or were available for cross-examination, introduction of the statements was classic hearsay, violated defendants’ rights to confrontation, and was not “harmless beyond a reasonable doubt.” Blue v. State, 558 P.2d 636 (Alaska 1977).

In a prosecution for sexual assault, where the deceased victim’s statements to the police were not so obviously trustworthy that little would have been gained by subjecting them to inquiry through cross-examination, admission of the statements violated the confrontation clauses of the United States and Alaska Constitutions. Ryan v. State, 899 P.2d 1371 (Alaska Ct. App. 1995).

Admission of hearsay was harmless error. —

Admission at trial of an individual’s statements that he had been told that defendant and codefendant had committed the robbery was erroneous, but the error was “harmless beyond a reasonable doubt.” Benefield v. State, 559 P.2d 91 (Alaska 1977).

Confrontation clause and evidentiary hearsay rule not equated. —

While it is apparent that the 6th amendment confrontation clause and the evidentiary hearsay rule stem from the same roots, both the Alaska supreme court and the United States supreme court have declined to equate the two. P.H. v. State, 504 P.2d 837 (Alaska 1972).

The United States supreme court has explicitly rejected the contention that the confrontation clause and the rules of hearsay evidence are identical. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

A violation of the hearsay rule is not per se a violation of the confrontation clause. The converse is also true, and satisfying the hearsay rule does not automatically indicate that the confrontation clause is satisfied. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

A defendant’s confrontation right is not automatically violated wherever hearsay evidence is admitted. Rather, the court must balance the nature of the evidence, the relationship to other evidence, the opportunity to examine the statement, and its importance to the central issue. In re J. H. B., 578 P.2d 146 (Alaska 1978).

Evidence admissible under joint undertaking exception to the hearsay rule does not automatically satisfy the requirement of the confrontation clause. To satisfy the right to confrontation, a statement must have sufficient indicia of reliability. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Statements admissible under an exception to the hearsay rule must bear an indicia of reliability such that the unavailability of the declarant for cross-examination does not deprive the jury of a satisfactory basis for evaluating the truth of the extra-judicial declarations. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Factors indicative of reliability are that: (1) The declaration contained no assertion of a past fact, (2) the declarant had personal knowledge of the identity and role of participants in the crime; (3) the possibility that the declarant was relying upon faulty recollection was remote; and (4) the circumstances under which the statements were made did not provide reason to believe that the declarant had misrepresented the defendant’s involvement in the crime. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Balancing test. —

In determining that testimony does or does not violate the confrontation clause, a balancing process has been approved which reviews the nature of the evidence, the relationship of other evidence, the opportunity to examine the statement, and the importance to the central issue of the trial. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Use of witness’s grand jury testimony violated defendant’s right to confront his accusers because, since the witness was not called to testify at the trial, defendant never had the opportunity to challenge this testimony by cross-examination, or to place before the jury the demeanor of the witness. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

No “interlocking confessions” doctrine. —

The supreme court declined to adopt a per se “interlocking confessions” doctrine as an exception under the Alaska Constitution to the rule that in a joint trial the introduction of inculpatory admissions by a codefendant who did not take the stand violated the 6th amendment rights of the defendant, who was thus unable to cross-examine. Quick v. State, 599 P.2d 712 (Alaska 1979).

The supreme court was unable to conclude that the right to confrontation, as it is preserved in this section, is never infringed when a codefendant’s factually similar confession is admitted in a joint trial. Quick v. State, 599 P.2d 712 (Alaska 1979).

Confessions or other inculpatory statements of a codefendant which are used at trial violate a defendant’s right of confrontation, if the codefendant is never subject to cross-examination. Benefield v. State, 559 P.2d 91 (Alaska 1977).

Nonculpatory statements did not violate defendant’s right. —

Codefendant’s statements denying involvement in a robbery and to the effect that codefendant owned no firearms did not violate defendant’s right of confrontation. Benefield v. State, 559 P.2d 91 (Alaska 1977).

Error in admitting codefendant’s statements was harmless “beyond a reasonable doubt” where the contested statements by codefendant were identical to defendant’s own admissions. Benefield v. State, 559 P.2d 91 (Alaska 1977).

Destruction of tape of codefendant’s confession. —

Where codefendant’s taped confession was destroyed after transcription, and was not used at trial except that the prosecution was permitted to establish that the statement had been made and the codefendant would sign it as accurate based on his observations and intent on the night the crime was committed, defendant was not deprived of his right to be confronted with witnesses against him, nor was he deprived of evidence that might have led the jury to entertain a reasonable doubt about his guilt. Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980).

Admission of co-conspirator statements did not violate defendant’s confrontation rights under either the United States or Alaska constitutions, where the statements satisfied the standards of reliability adopted in Hawley v. State, 614 P.2d 1349 (Alaska 1980). Stumpf v. State, 749 P.2d 880 (Alaska Ct. App. 1988), cert. denied, 490 U.S. 1070, 109 S. Ct. 2075, 104 L. Ed. 2d 639 (U.S. 1989).

Admission of a co-conspirator’s out-of-court statements did not violate defendant’s rights under the confrontation clause, where the statements did not implicate defendant in an alleged homicide and there was no basis for concluding that the statements misrepresented defendant’s involvement in the homicide. Arnold v. State, 751 P.2d 494 (Alaska Ct. App. 1988).

Conflict between witness’s privilege against self-incrimination and accused’s right of effective cross-examination. See Lemon v. State, 514 P.2d 1151 (Alaska 1973); Thomas v. State, 522 P.2d 528 (Alaska 1974).

Defendant not denied effective assistance of counsel. —

Appellant's post-conviction application failed to state a prima facie case of ineffective assistance of counsel. Appellant did not plead any facts showing that her attorney's tactical assessment in advising appellant not to testify was unreasonable or otherwise unsound. Cleveland v. State, — P.3d — (Alaska Ct. App. Jan. 3, 2018) (memorandum decision).

Right to confront controls over privilege based on public policy. —

When conflict is found between the constitutional right of confrontation and the exercise of a privilege based on public policy, the constitutional right must control. Salazar v. State, 559 P.2d 66 (Alaska 1976).

When defendant’s right to confront effectively witnesses against him by exploring their possible bias or prejudice is balanced against a rule based solely on policy grounds, such as marital privilege, defendant’s constitutional rights must prevail. Salazar v. State, 559 P.2d 66 (Alaska 1976).

Thus, wife could be questioned as to husband’s statement. —

Trial court erred in granting a protective order which prohibited defendant, who was charged with first-degree murder, from questioning his wife concerning her husband’s statement to her that he had committed the murder. Salazar v. State, 559 P.2d 66 (Alaska 1976).

The witness has no right to seek the court’s protection from questions which would reveal any bias or prejudice. Salazar v. State, 559 P.2d 66 (Alaska 1976).

One traditional method of impeachment is to demonstrate that a witness harbors bias or prejudice toward one of the parties or a personal interest in the outcome of the trial which can be expected to color his testimony and undermine its reliability. Evans v. State, 550 P.2d 830 (Alaska 1976).

It is essential to a defendant’s right to a fair trial that he be allowed every opportunity to show bias on the part of a witness testifying against him. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

If defendant’s counsel was unduly limited in his right of cross-examination to show bias on a witness’ part by the failure of the state to produce certain documentary material, then there must be a reversal and a new trial. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Defendant’s conviction of six counts of sexual abuse of a minor was reversed where the trial court limited defendant’s ability to advance his theory of bias on the part of a juvenile witness who had entered into a conduct agreement with the state to delay delinquency proceedings resulting from charges that the witness had abused a minor; without evidence of the pending conduct agreement, the jury could have no basis for concluding that the witness had any reason to accommodate the state by fabricating his claim of abuse against the defendant. Wood v. State, 837 P.2d 743 (Alaska Ct. App. 1992).

Denial of access to impeachment evidence. —

Denial of defendant’s request for in camera review of the juvenile file of a prosecution witness for purposes of defendant’s impeachment of the witness at sentencing did not violate his right of confrontation. Cockerham v. State, 933 P.2d 537 (Alaska 1997).

But cross-examination as to bias is not unqualified. —

Although cross-examination to show bias in a particular case should be given greater latitude than a general, broadside attack on the credibility of a witness, even the right to cross-examine as to bias is not absolute and unqualified. Evans v. State, 550 P.2d 830 (Alaska 1976).

It does not entail right to harass, annoy, etc. —

The right to cross-examine as to bias does not entail the right to harass, annoy or humiliate a witness on cross-examination, nor to engage in repetitive questioning, nor to inquire into matters which would expose the witness to danger of physical harm. Misconduct which is so old that it has little probative bearing on a witness’ present impartiality is probably excludable. Evans v. State, 550 P.2d 830 (Alaska 1976).

Standard used when right to confront principal accuser denied. —

When a criminal defendant is denied his constitutional right to confront and cross-examine his principal accuser, the Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) standard controls the effect of that error. That standard requires reversal unless the appellate court can declare a belief that the error was “harmless beyond a reasonable doubt.” Evans v. State, 550 P.2d 830 (Alaska 1976).

Trial court unduly restricted the scope of cross-examination of the state’s chief witness, an undercover state operative, in violation of defendant’s right of confrontation guaranteed by the United States and Alaska constitutions, by a protective order and superior court rulings prohibiting defendant from inquiring into the matters concerning the operative’s past convictions, his narcotics addiction, the circumstances under which he went to work for the police, and his modus operandi as an operative. Evans v. State, 550 P.2d 830 (Alaska 1976).

Right to establish witness’s bias. —

Defendant in prosecution for sale of marijuana not denied right to establish bias on part of state trooper. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Destruction of evidence. —

In a prosecution for burglary in a dwelling, where a state trooper destroyed a piece of cardboard that allegedly was marked with a bootprint after he had determined that the bootprint had dried and was no longer visible, such destruction did not deny to defendants the right of confrontation or cross-examination, since the missing piece of evidence did not establish any presumption against them. Linden v. State, 598 P.2d 960 (Alaska 1979).

Where trial court knew in advance of witness’s intended refusal to answer questions, holding the attempted questioning out of the jury’s presence was not error. Williams v. State, 600 P.2d 1092 (Alaska 1979).

Cross-examination improperly restricted. —

In a prosecution for operation of a motor vehicle while intoxicated, the court improperly restricted defendant’s cross-examination of the person who administered the breathalyzer test when it sustained the state’s objection to defendant’s line of inquiry, where defendant was seeking through his attempted questioning to raise doubts in the jury’s mind regarding the reliability of the test. Keel v. State, 609 P.2d 555 (Alaska 1980).

Cross-examination of prosecution witness on probation. —

The United States supreme court in Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), held that the constitutional right of confrontation required that defense counsel be allowed to investigate the potential bias of a crucial prosecution witness, even where that potential bias arose out of a juvenile adjudication and its resultant probationary status. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

The United States supreme court concluded that Alaska’s interest in protecting the anonymity of the juvenile offender was outweighed by the more critical need to afford a criminal defendant reasonable inquiry into the motives of prosecution witnesses. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

The constitutional requirement of disclosure in Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), is created not by the juvenile adjudication itself but by the probationary status of the juvenile at the time of Davis’ trial, with its potential for motivating false testimony. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

In Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), the United States supreme court held that an accused’s right of confrontation was violated when a trial court of this state refused to allow exploration of a witness’ juvenile adjudication and probationary status, where that status had significant potential for influencing the witness’ testimony. Thomas v. State, 522 P.2d 528 (Alaska 1974).

Steps can be taken to avoid prejudice to witness. —

Where there is a true need to explore facts which are within the ambit of the witness’ privilege against self-incrimination, it may be necessary to accord the defendant the right to require answers to potentially incriminating questions. In such a case steps can be taken to avoid any prejudice to the witness. Thomas v. State, 522 P.2d 528 (Alaska 1974).

Extent to which defense counsel can accomplish objectives without infringing on witness’ privilege. See Thomas v. State, 522 P.2d 528 (Alaska 1974).

Where the witness was not on juvenile probation, it cannot be seriously argued that the fact of previous juvenile convictions, standing alone, provided any inference of potential bias. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

State’s interest in secrecy of juvenile adjudications need not always fall before confrontation right. See Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

The decision in Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), must not be read so broadly as to totally abrogate the traditional right of trial courts to exercise discretionary control over the type and manner of evidentiary presentation. Thomas v. State, 522 P.2d 528 (Alaska 1974).

Attempted impeachment of general credibility by proof of prior convictions. —

Juvenile adjudications which are stale by Alaska’s standards, and directed solely at general credibility rather than bias, are generally not sufficiently probative to create a genuine conflict with the defendant’s right of confrontation. Gonzales v. State, 521 P.2d 512 (Alaska), cert. denied, 419 U.S. 868, 95 S. Ct. 125, 42 L. Ed. 2d 106 (U.S. 1974).

As a general rule, trial courts could properly refuse evidence of stale convictions or juvenile adjudications where these were offered for the purpose of discrediting a witness generally, rather than to show some specific potential for bias or prejudice toward the defendant. Thomas v. State, 522 P.2d 528 (Alaska 1974).

No constitutionally based duty to produce all possible witnesses at trial. See Thomas v. State, 522 P.2d 528 (Alaska 1974).

A defendant has a right to be present when any type of communication occurs between the court and the jury during its deliberations. Cox v. State, 575 P.2d 297 (Alaska 1978).

Where mistaken identity and alibi were the main defenses of a defendant charged with assault with intent to rape, the superior court’s ex parte communication to the jury made in response to their request for playback of testimony of alibi witnesses constituted reversible error. Cox v. State, 575 P.2d 297 (Alaska 1978).

Under both the United States Constitution and the Alaska Constitution, the right of a defendant to be present at every stage of the trial has been recognized. Included within the scope of this right is the period of jury deliberations; thus, the defendant has the right to be present whenever any communication between the court and the jury occurs during those deliberations. Dixon v. State, 605 P.2d 882 (Alaska 1980).

It is constitutional error for the judge to communicate with the jury or permit the playback of testimony to the jury in the defendant’s absence. Cox v. State, 575 P.2d 297 (Alaska 1978).

In the absence of an express waiver by a defendant in a criminal case, it is constitutional error for a judge to permit the playback of testimony in the defendant’s absence. Richardson v. State, 579 P.2d 1372 (Alaska 1978).

Trial court erred in responding to a written communication from the jury during its deliberations requesting a playback of certain testimony without notifying defendant or either counsel and without allowing the parties to be present and to be heard on the matter, where the testimony requested was that of the defendant and the prosecutrix and the judge’s response was to inform the jury that he could not allow them to hear “all of the testimony of a witness to be replayed” and to suggest that the jury narrow its request. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Where jury communicated to judge that they felt threatened by presence in courtroom of defendant’s boyfriend and that at least one juror desired a police escort to her car after the rendering of the verdict against defendant, failure of the judge to inform defendant or her counsel of the communication was reversible error. Newman v. State, 655 P.2d 1302 (Alaska Ct. App. 1982); Jones v. State, 719 P.2d 265 (Alaska Ct. App. 1986).

While defendant’s federal and state constitutional right to be present throughout the trial was violated, and Alaska Crim. R. 38(a) was violated, because the court staff erred in providing the jury with a verdict form without authorization from the court and notice to defendant, the error was harmless beyond a reasonable doubt. Crouse v. Municipality of Anchorage, 79 P.3d 660 (Alaska Ct. App. 2003).

Right to be present at every stage of trial. —

The constitutional and statutory rights of the accused to be present and represented by counsel at every stage of the trial — including the return of the verdict — are fundamental. Koehler v. State, 519 P.2d 442 (Alaska 1974).

In Alaska, the right to be present at every stage of the trial is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him. Dixon v. State, 605 P.2d 882 (Alaska 1980).

Defendant’s presence was required at the proceedings when the trial court discharged the jury because of their inability to agree on a verdict. The events constituted a “stage of the trial.” Koehler v. State, 519 P.2d 442 (Alaska 1974).

Absence due to disruptive behavior of defendant. —

Trial court may exclude a criminal defendant for disruptive behavior, and although the court had to allow an excluded criminal defendant an opportunity to reclaim his right to be present if he demonstrated willingness to behave appropriately, it was not obliged to uncritically accept every promise to behave; the trial court did not abuse its discretion either by removing defendant from the courtroom or by refusing his later request to reenter where nothing in defendant’s words or in his recent or past conduct demonstrated that it was an abuse of discretion to decline to return him to the courtroom one more time. Douglas v. State, 214 P.3d 312 (Alaska 2009).

Basis of right to be present. —

In Alaska, the right to be present at trial is founded in the state constitutional rights of the accused to due process and to confront the witnesses against him, as well as in the United States Constitution, the confrontation clause of the 6th amendment or the 14th amendment’s due process clause. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Common-law origins of right to be present at trial. —

See State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Such right has been implemented by Cr. R. 38. —

The constitutional right of a defendant to be present in the courtroom at every stage of the trial has been implemented as a procedural requirement by Cr. R. 38. State v. Hannagan, 559 P.2d 1059 (Alaska 1977); Osborne v. State, 623 P.2d 784 (Alaska 1981).

The constitutional right to be present at every stage of trial has been implemented by the provisions of Cr. R. 38(a), which provides that the “defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule.” Dixon v. State, 605 P.2d 882 (Alaska 1980).

A voluntary absence constitutes waiver of right to be present. Lee v. State, 509 P.2d 1088 (Alaska 1973).

While there is authority that the right to be present cannot be so waived in capital cases, the general view is that if a defendant “absconds” or “willfully makes himself unavailable” after the trial has begun, he cannot defeat the proceedings, and an implied waiver is established, at least in noncapital cases. Lee v. State, 509 P.2d 1088 (Alaska 1973).

A defendant cannot frustrate a trial in progress by absconding. Lee v. State, 509 P.2d 1088 (Alaska 1973).

But there must be clear evidence that absence is voluntary. —

Courts have been most reluctant to find that a defendant’s absence is “voluntary” in the absence of clear evidence on the record that he knew of the proceedings and exercised a decision to stay away. Lee v. State, 509 P.2d 1088 (Alaska 1973).

If a defendant at liberty remains away during his trial, the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to the present, and he must have no sound reason for remaining away. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Where it was doubtful if defendant even knew that the reading of the verdict was taking place and his appearance at the courthouse just as they were ending showed a lack of any intent to frustrate them or to “abscond,” there was no basis for a finding that his absence was “voluntary” so as to constitute a waiver of his right to be present under Cr. R. 38. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Court must decide if involuntary absence is reversible error. —

A court is required to decide whether the involuntary absence of the defendant at the discharge stage of trial constitutes reversible or prejudicial error. Koehler v. State, 519 P.2d 442 (Alaska 1974).

Right to be present is personal. —

There is persuasive authority that the defendant’s right to be present is a personal one which cannot be waived by counsel at least in the absence of the defendant’s presence at the time of the waiver or an express authorization by the defendant. Lee v. State, 509 P.2d 1088 (Alaska 1973). See also, Osborne v. State, 623 P.2d 784 (Alaska 1981).

Defendant’s attendance not required. —

Failing to require defendant’s attendance at a morning deposition of a district attorney for purposes of a contempt charge brought against defendant’s attorney was not error, although the hearing on the contempt charge was later combined with a hearing on the marital privilege issue presented by defendant’s case. Osborne v. State, 623 P.2d 784 (Alaska 1981).

Defendant’s absence from a pretrial conference held during a criminal trial did not rise to the level of plain error. Dolchok v. State, 639 P.2d 277 (Alaska 1982).

Ex parte hearing where witness claims privilege. —

Notwithstanding a criminal defendant’s right to be resent “at every stage of the trial” under Criminal Rule 38(a), and the defendant’s right to due process, a trial judge has the authority to hear ex parte a witness’s explanation of his basis for asserting a privilege not to testify. Taylor v. State, 977 P.2d 123 (Alaska Ct. App. 1999).

When attorney may waive client’s right in noncapital cases. —

It seems clear that while an attorney may waive his client’s right to be present in a noncapital case, the waiver is effective only if either: (1) The defendant has given counsel express authority in a knowing and intelligent manner, (2) the defendant is present at the time of the waiver, has clearly been informed of his rights, and remains silent, or (3) the defendant subsequently acquiesces in the proceedings in a knowing and intelligent manner. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Failure of counsel to object to reading verdict in defendant’s absence. —

Any argument that the failure of defendant’s counsel to object to the verdict being received in his absence precludes review of that issue on appeal is necessarily included in the larger issue of whether the attorney had the power to expressly waive defendant’s right to be present. Otherwise, an attorney could accomplish by silence what he had no authority to do by words. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Waiver by counsel held clearly erroneous. —

To allow a substitute counsel to waive a defendant’s right to be present at the return of the verdict was clearly erroneous, where there was no evidence of express authorization or acquiescence by defendant, no evidence of “voluntary absence,” no evidence of a great detriment to the administration of justice, and no reasonable basis for a “trial strategy” argument. Lee v. State, 509 P.2d 1088 (Alaska 1973).

In light of the constitutional mandate of defendant’s personal waiver, waiver by defendant’s attorney of defendant’s presence during the playback of testimony to the jury was ineffective, and since the defendant did not effectively waive his presence, it was constitutional error for the judge to communicate with the jury or permit the playback of testimony in defendant’s absence. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Violation of right to be present is reversible error. —

Where defendant was deprived of his right to be present at the return of the verdict, a substantial right was violated, and the violation constituted reversible error. Lee v. State, 509 P.2d 1088 (Alaska 1973).

Waiver of right of accused to be present at every stage of trial. —

See Brown v. State, 372 P.2d 785 (Alaska 1962).

Waiver. —

See Lanier v. State, 486 P.2d 981 (Alaska 1971).

Waiver of right by minor to attend waiver hearing under AS 47.10. —

Although a minor had a constitutional right to attend her waiver hearing, held pursuant to AS 47.10, she waived that right when she voluntarily failed to appear at the hearing by refusing to waive extradition from another state. N.P.A. v. State, 604 P.2d 599 (Alaska 1979).

The use of electronically recorded testimony of a witness from a former trial in which the jury failed to reach a verdict did not deprive the accused of his right to be confronted with the witness who testified against him since the accused had exercised his privilege by cross-examining the witness at the first trial. McBride v. State, 368 P.2d 925 (Alaska 1962), cert. denied, 374 U.S. 811, 83 S. Ct. 1702, 10 L. Ed. 2d 1035 (U.S. 1963).

Lack of court’s authority to conduct in camera bail hearings. —

See note under analysis line III, Bail.

Right to analyze components of breathalyzer machine. —

Where defendant was charged with operating a motor vehicle while intoxicated, denial of the right to make an analysis of some of the components of the breathalyzer machine, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Failure to allow introduction of records when direct testimony available. —

Defendant’s right to confrontation and cross-examination was not violated by the superior court’s failure to allow the introduction of hospital records reflecting statements of the victim of an assault with a dangerous weapon made subsequent to a recent suicide attempt, since the victim could have been questioned thoroughly about the statements in the hospital record. White v. State, 577 P.2d 1056 (Alaska 1978).

Superior court’s in camera examination of victim’s journal kept before, during, and after the events in question did not deprive defendant, convicted of kidnapping, assault with intent to rape, and forcible rape, of “effective confrontation” or of access to evidence which was potentially helpful to his defense. Morrell v. State, 575 P.2d 1200 (Alaska 1978).

Excusal of juror in defendants’ absence. —

See Coney v. State, 699 P.2d 899 (Alaska Ct. App. 1985).

Sentencing change constitutional where defendant notified. —

A defendant’s due process rights are not violated by a judge who initially imposes a concurrent sentence in the presence of the defendant and, subsequently realizing that he intended to impose a consecutive sentence, does so but not in the defendant’s presence, where the judge’s remarks before and during the pronouncement of sentence make it clear that he intends to impose a consecutive sentence, and the defendant is given notice of a change in his sentence. Merry v. State, 752 P.2d 472 (Alaska Ct. App. 1988).

Admission of breathalyzer packet does not violate right to confrontation. —

The admission of the breathalyzer packet as a foundation for the introduction of breathalyzer evidence in a drunk driving case is the introduction of a public record of factual findings recorded in the regular course of official business, made independently and well in advance of any particular prosecution, and does not violate the defendant’s right to confrontation. State v. Huggins, 659 P.2d 613 (Alaska Ct. App. 1982).

Admissibility of blood test results. —

Where blood sample was taken by and was in possession of hospital where defendant sought treatment following car accident, and where on the facts of the case, both defendant and state had opportunity to preserve the sample, trial court did not err in ruling that the blood test results were admissible even though the state had not sought preservation of the blood sample. Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983).

Introduction of victim’s grand jury testimony. —

Where victim claimed to be unable to recall incidents surrounding crime, introduction of victim’s grand jury testimony was proper and did not deprive defendant of his constitutional right of confrontation. Van Hatten v. State, 666 P.2d 1047 (Alaska Ct. App. 1983).

Hypnotically adduced evidence. —

Defendants are deprived of their constitutional right of confrontation under the Alaska Constitution when hypnotically adduced evidence is introduced. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Witnesses who have been previously hypnotized are permitted to testify only to facts which they related prior to hypnosis. Contreras v. State, 718 P.2d 129 (Alaska 1986), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Requirements of AS 12.45.046 must be met by clear and convincing evidence. —

The preponderance of the evidence standard cannot provide sufficient protection against violation of a defendant’s right to confrontation, and no dilution of the right of confrontation should be permitted without an express finding that the requirements of the statute relating to the testimony of children in criminal cases, AS 12.45.046 , including the requirements of Maryland v. Craig , 497 U.S. 856 (1990), that are implicit therein, have been met by clear and convincing evidence. Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).

Exclusion of evidence concerning sexual assault victim’s foster care status as a ward of the state may have unduly infringed on defendant’s confrontation rights, where the victim may have had a special fear of adverse consequences because she was under foster care, and her wardship status strongly suggested that she had a motive to fabricate. Sledge v. State, 763 P.2d 1364 (Alaska Ct. App. 1988).

No exclusion of defendants during their child’s testimony. —

Exclusion of defendants from the courtroom while their five-year-old daughter testified at their trial for assault was reversible error, where the evidence did not establish that the effect of their presence in the courtroom was likely to substantially inhibit the child in effectively communicating her version of the events to the jury. Blume v. State, 797 P.2d 664 (Alaska Ct. App. 1990).

Introduction of seven-year-old girl’s grand jury testimony and a videotape of her police interview did not deprive defendant of his constitutional right to confrontation at his trial for sexual abuse of a minor. Sheldon v. State, 796 P.2d 831 (Alaska Ct. App. 1990).

Similar crime committed on another victim. —

Exclusion of evidence of victim’s involvement in a sexual assault on another child deprived defendant of his right of confrontation at his trial for sexual abuse of a minor, where his defense was based on the premise that the victim fabricated her accusation in retaliation for defendant’s attempt to oust her from her foster home for sexual misconduct. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Right to be confronted with witnesses denied. —

In a trial for perjury, a defendant was denied the constitutional right to be confronted with witnesses against him where a policeman’s prior recorded testimony was admitted at trial without a showing that the policeman was unavailable. Bentley v. State, 706 P.2d 1193 (Alaska Ct. App. 1985).

Rape shield statute. —

When properly applied, the rape shield statute will not encroach on the confrontation clause, because there is no right to confront and cross-examine on irrelevant issues. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

VI.Compulsory Process

Right implemented by Cr. R. 16. —

Alaska Cr. R. 16, which pertains to the scope of discovery, essentially implements the right to compulsory process. Keith v. State, 612 P.2d 977 (Alaska 1980).

What compulsory process relates to. —

Compulsory process relates to obtaining both witnesses and documentary evidence in the accused’s favor and is intended to ensure a fair trial even when the accused is indigent, but it is normally a right associated with pretrial discovery. Keith v. State, 612 P.2d 977 (Alaska 1980).

Compulsory process applies to documentary evidence. —

While the constitutional provisions speak of compulsory process for “obtaining witnesses” in a defendant’s favor, this clause has been construed as applying as well to documentary evidence. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

The error of a court in denying discovery of documents relevant to the defense would be in violation of defendant’s federal and state constitutional right to be allowed “compulsory process” to obtain such evidence. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Disclosure when not harmful to law enforcement or protection efforts. —

If the district attorney fails to show that disclosure will harm enforcement or protection efforts, the material must be disclosed. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Disclosure is required if the judge’s in camera inspection shows that the material is relevant to the defense — whether or not the prosecutor has demonstrated that discovery will be inconsistent with enforcement or protection efforts. In the latter circumstance, the state must decide between continuing to prosecute, while incurring the problems posed by disclosure, and terminating the prosecution in order to maintain the material’s secrecy. Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S. Ct. 2246, 56 L. Ed. 2d 410 (U.S. 1978).

Denial of discovery of the psychiatric report on a witness did not deny defendant her constitutional right of compulsory process since it would have been an unwarranted infringement of the witness’s privacy, and therefore inconsistent with the protection of persons, to grant access to the witness’s private medical records when the material was not relevant. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

Destruction of tape of codefendant’s confession. —

See note under this catchline under anaylsis line V, “Confrontation.”

Disqualifying witness from testifying. —

Although disqualifying defendant’s stepfather from testifying because he had violated a witness exclusion order was error, since there was no indication that the trial court considered alternative sanctions or balanced the prejudice to the defendant from excluding the testimony against prejudice to the state from allowing it, the error was harmless because the testimony was of limited relevance. Babcock v. State, 685 P.2d 721 (Alaska Ct. App. 1984).

Instruction on absence of witness. —

Absence of a state witness did not entitle defendant to a “missing witness” instruction. Even among the jurisdictions that allow comment on missing witnesses, many allow this type of comment only if the witness in question is “reasonably assumed to be favorably disposed to the party who fails to call the witness” — here, the State. McKinley v. State, — P.3d — (Alaska Ct. App. Feb. 2, 2011) (memorandum decision).

VII.Assistance of Counsel
A.In General

This section guarantees the assistance of counsel to an accused in a criminal prosecution for his defense. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Without it, though defendant be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

The accused shall have the right to be represented by counsel in any criminal prosecution. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Both this section and 6th amendment guarantee right to counsel. —

Both the 6th amendment to the United States Constitution and this section guarantee a criminal defendant the right to counsel. McCracken v. State, 518 P.2d 85 (Alaska 1974).

This section and the 6th and 14th amendments to the United States Constitution guarantee an accused the right to assistance of counsel in criminal prosecutions against him. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

But they apply only to criminal prosecutions. —

The right to counsel guaranteed by this section is limited to criminal prosecutions. V.F. v. State, 666 P.2d 42 (Alaska 1983). For right to counsel in civil proceedings, see notes to Alaska Const., art. I, § 7 II A. — Ed. note.

The 6th amendment to the United States Constitution and this section of the Alaska Constitution by their terms apply only to criminal prosecutions, and protect only those accused of crime with respect to the preparation of a defense. McCracken v. State, 518 P.2d 85 (Alaska 1974).

Unlike the privilege against self-incrimination, the right to counsel provided by the 6th amendment attaches only after formal charges have been filed. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Defendant’s right to counsel was not implicated where no adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, had been initiated against him. Eben v. State, 599 P.2d 700 (Alaska 1979).

The term “criminal prosecution,” as it relates to the right to have the assistance of counsel, includes any offense a direct penalty for which may be incarceration in a jail or penal institution, which may result in the loss of a valuable license, or which may result in a heavy enough fine to indicate criminality. Such right to the assistance of counsel means that counsel must be appointed at public expense to a misdemeanor defendant who is indigent and too poor to have his own lawyer. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Sixth amendment applicable to state trials. —

The 14th amendment to the United States Constitution mandated application of the assistance of counsel clause of the 6th amendment to state trials. Risher v. State, 523 P.2d 421 (Alaska 1974).

State right to counsel is more expansive. —

The right to counsel under the Alaska Constitution is more expansive than the corresponding right under the sixth amendment to the United States Constitution.Resek v. State, 706 P.2d 288 (Alaska 1985).

When state right construed more broadly. —

Although the supreme court is not limited to the scope of the 6th amendment when construing the right to counsel provided by the state constitution, when it has provided a broader right in the past it has done so only to protect the accused during proceedings that are investigatory in nature and which are conducted in an adversary context. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Assistance of counsel is a valuable right. —

To be assisted by counsel in a criminal action is not merely desirable, it is a valuable right. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Denial of right invalidates trial. —

The right to have the assistance of counsel is so fundamental and absolute that its denial invalidates the trial at which it occurred and requires a verdict of guilty therein to be set aside, regardless of whether prejudice was shown to have resulted from the denial. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

The absolute deprivation of counsel will be regarded as a constitutional violation per se, and no inquiries will be permitted as to whether the defendant would otherwise have been found guilty. Risher v. State, 523 P.2d 421 (Alaska 1974).

Denial of defendant’s request for continuance of trial so that he could have more time to obtain attorney to represent him effectively denied constitutional right to assistance of counsel. Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

Right to counsel is case specific. —

The use by police officers of an already incarcerated defendant’s girlfriend to elicit incriminating statements regarding his sexual abuse did not violate the defendant’s right to counsel where the defendant had retained counsel in a matter unrelated to the sexual abuse that the police were investigating. The right to counsel is case specific and the fact that it has attached in a particular case does not entitle the accused to demand representation in connection with factually and legally unrelated matters in which the state has made no accusation and taken no adversary action. Carr v. State, 840 P.2d 1000 (Alaska Ct. App. 1992).

Police were not required to contact defendant’s counsel when they were negotiating his surrender in connection with a crime for which he had not been charged or arrested. West v. State, 923 P.2d 110 (Alaska Ct. App. 1996).

Effect of rules on right to counsel. —

Alaska R. Crim. P. 5 and Alaska R. Crim. P. 5.1 were adopted to implement the constitutional right to counsel, not to supersede it; therefore, an argument that the rights contained therein could have been abrogated by an order of the Alaska Supreme Court or by legislation failed. Gladden v. State, 153 P.3d 1028 (Alaska Ct. App. 2007).

Right to counsel in prosecution for misdemeanor. —

An accused has the right to the assistance of counsel for his defense if he is prosecuted for a misdemeanor, as well as for a felony, when the penalty upon conviction of the misdemeanor may result in incarceration in a jail or penal institution, the loss of a valuable license or a fine so heavy as to indicate criminality. Gregory v. State, 550 P.2d 374 (Alaska 1976); O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978); Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

When convicted for violating AS 28.35.030 , the law prohibiting operation of a motor vehicle while intoxicated, a person may receive a fine of not more than $1,000 or a term of imprisonment for not more than one year, or both. Therefore, such case is one in which the right to counsel is guaranteed an accused by the Alaska Constitution. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Although an offense may be a minor infraction, the right to counsel still attaches. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

The right to counsel extends to children charged with delinquency. RLR v. State, 487 P.2d 27 (Alaska 1971).

A juvenile must be afforded the right to be represented by counsel at the delinquency proceeding, and a denial of that right violates due process. Doe v. State, 487 P.2d 47 (Alaska 1971).

Appointment for indigent. —

The 6th and 14th amendments require that counsel be appointed for indigents in felony trials in state courts. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Indigents are entitled to appointed counsel at public expense in any misdemeanor prosecution where there is a possibility of incarceration, loss of a valuable license, or imposition of a heavy fine upon conviction. Hood v. Smedley, 498 P.2d 120 (Alaska 1972).

Trial court erred when it denied defendant’s request for appointed counsel because the record did not show that defendant intelligently, knowingly, and voluntarily waived his right to counsel; moreover, it was highly questionable whether defendant had the ability to pay the likely cost of private representation. Stenseth v. State, — P.3d — (Alaska Ct. App. Nov. 18, 2009) (memorandum decision).

Expert need not be appointed to assist indigent. —

There is nothing fundamentally unfair about not appointing an expert to assist an indigent defendant in his defense where it appears that the disadvantage of not having the advice of such an expert is not so great as to deprive a defendant of a fair trial. Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (U.S. 1970).

Indigents detained for serious crime eligible for public defender. —

Since an indigent defendant is entitled to representation by counsel when prosecuted for an offense the direct penalty for which may be incarceration, loss of a valuable license, or a fine heavy enough to indicate criminality, it follows that any such offense is a serious matter and a “serious crime” within the meaning of the Public Defender Act (AS 18.85.010 et seq.). Therefore, a defendant charged with any such misdemeanor who cannot afford to hire his own lawyer is eligible for representation by the public defender. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Advising nonindigent defendant of right to counsel. —

Criminal Rule 39(a) must be interpreted consistently with Cr. R. 39(b)(3) in order to avoid constitutional problems; i.e., the advice given to a nonindigent defendant concerning the right to counsel must also include at least a brief explanation of the “benefits of counsel.” Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

No right to select particular attorney. —

The right to court-appointed counsel does not carry with it the right to select a particular attorney. Stevens v. State, 514 P.2d 3 (Alaska 1973).

A criminal defendant’s choice of counsel must be honored. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Once counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Entry of guilty plea after defendant denied right to chosen counsel. —

Where a defendant has been denied the right to be represented by his chosen counsel, the subsequent entry of a plea of guilty or nolo contendere does not shield a conviction from challenge on appeal, since the voluntariness and reliability of such a plea is inherently suspect, just as it is when a plea is entered without counsel, or with the ineffective assistance of counsel. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Appointment of unwanted counsel after dismissal of first counsel assigned. —

By dismissing the attorney assigned to represent defendant for unexcusable lack of preparation, and then by appointing unwanted counsel to represent defendant over defendant’s express protest, the trial court deprived the defendant of his fundamental right under the 6th amendment to the United States Constitution and this section to counsel of his choice. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Right to counsel of choice at sentencing not denied where court refused to grant five-week continuance. See Burleson v. State, 543 P.2d 1195 (Alaska 1975).

Defendant not deprived of right to be represented at trial by counsel of choice. See Green v. State, 544 P.2d 1018 (Alaska 1976).

When court must assign counsel. —

While only a brief inquiry into a defendant’s comprehension of the right to self-representation will be necessary in many cases, in extreme circumstances the person may be unable to make an intelligent choice because of his mental condition, age, education, experience, the complexity of the case, or other factors. When such a situation arises, it is the duty of the court, whether requested or not, to assign counsel for the accused as a necessary requisite of due process of law under the federal and state constitutions. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Inexperienced counsel appointed minutes before hearing. —

Defendant did not have ineffective assistance of counsel at the preliminary hearing though his attorney was inexperienced in criminal law and was given the case 10 to 15 minutes before the hearing. Green v. State, 579 P.2d 14 (Alaska 1978).

Deliberate electronic surveillance of attorney-client conversations constitutes a serious infringement of the constitutional right to the effective assistance of counsel as well as a denial of due process. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

The devastating impact of exposure of confidential information to the prosecution impinges on the right to effective assistance of counsel in defending against criminal charges. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Exercise of peremptory challenge rights. —

Ordinarily counsel, rather than the defendant, should exercise the defendant’s peremptory challenge rights. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

When a defendant who is represented by counsel fails to interpose a peremptory challenge to the trial judge prior to the selection of the jury, he forfeits the right. No inquiry need be made into the defendant’s understanding of his rights, or the extent to which he and counsel has discussed them. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

Use of breathalyzer test results. —

In a prosecution for manslaughter, where the defendant objected, on grounds of right to counsel and unreasonable search and seizure, to the use of breathalyzer test results, and where the defendant’s defense was self-defense, the court held that even if there was constitutional error it was harmless error since (1) proof of intoxication is irrelevant to the defense of self-defense, (2) the evidence was not used to impeach the defendant, and (3) there was other ample, uncontested, evidence of intoxication. Nygren v. State, 616 P.2d 20 (Alaska 1980).

Denial of services of paraffin test expert at state expense did not deprive defendant of effective assistance of counsel where the record indicated that the issue of the paraffin test administered to defendant was of extremely limited relevance. McCracken v. State, 521 P.2d 499 (Alaska 1974).

It would be a difficult and delicate task for a reviewing court to attempt to assess the effectiveness of individual tactical decisions made by trial counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Cost of providing counsel. —

Based upon AS 22.15.270 , most of the major political subdivisions of the state have entered into contractual arrangements with the Alaska court system whereby the political subdivision has agreed to pay the salaries of the district judges, and all other costs of running the courts which are attributable to prosecutions initiated by the political subdivision. Since the cost of providing counsel seems indistinguishable from the cost of providing these judicial services, it should be treated in the same way. Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971).

Comment on evidence by counsel. —

The basic rule is that an accused, by virtue of his constitutional right to be heard by counsel, is entitled to have counsel comment upon evidence submitted at trial. It is only when evidence is irrelevant or not at issue in the case that comment may be forbidden. Lewis v. State, 469 P.2d 689 (Alaska 1970).

Client bound by attorney’s waiver. —

Unless “exceptional circumstances” are present, or the attorney’s actions constitute incompetence which reduce the trial to a “farce or a sham,” the client is bound by his attorney’s waiver. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Assistance of counsel in defense of criminal contempt charge. —

Accused is entitled to a jury trial on the question of whether he committed a criminal contempt, and under this section accused is entitled to have the assistance of counsel in defense of this charge. State v. Browder, 486 P.2d 925 (Alaska 1971).

Whispered conversation between defendant and his counsel during a recess in the trial which was partially overheard by the judicial services officer who was custodian of defendant was a confidential one for purposes of applying the lawyer-client privilege. Blackmon v. State, 653 P.2d 669 (Alaska Ct. App. 1982). See Alaska Rule of Evidence 503(b).

Use of informant to elicit information. —

The use of an informant to make contact with the defendant for purposes of eliciting incriminating statements, prior to the initiation of adversary proceedings, did not amount to a violation of the right to counsel under the Alaska Constitution. Thiel v. State, 762 P.2d 478 (Alaska Ct. App. 1988).

Test for error. —

Where the constitutional rights to remain silent and to the assistance of counsel are involved, any error must be harmless beyond a reasonable doubt. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

Criminal Rule 39(b) construed in light of this section. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

Forfeiture aspects of Criminal Rule 25(d)(5) only apply to a represented client; where the defendant is not represented, he must have reasonable access to counsel before the commencement of trial if the failure to file a timely peremptory challenge is to work a forfeiture. Trudeau v. State, 714 P.2d 362 (Alaska Ct. App. 1986).

B.Effectiveness

No counsel versus ineffective counsel. —

There is a distinction between cases in which no counsel is furnished at all and those in which it is contended that representation was ineffective. Risher v. State, 523 P.2d 421 (Alaska 1974).

Judges are not in a position to evaluate instantly the tactics of trial counsel. Risher v. State, 523 P.2d 421 (Alaska 1974).

An automatic reversal due to error committed by attorneys would lead to no prospective prophylaxis as judges normally would have no way of knowing in advance that counsel will prove to be incompetent. Risher v. State, 523 P.2d 421 (Alaska 1974).

Presumption of competence held not rebutted. —

Without any evidence of specific incompetent actions or any corroborating adverse inferences to be drawn from defense counsel’s invocation of the privilege against self-incrimination, the presumption that counsel acted with competence stands. Nelson v. State, 273 P.3d 608 (Alaska 2012).

Whether counsel is incompetent usually can be ascertained only after trial. Risher v. State, 523 P.2d 421 (Alaska 1974).

Conduct of trial judge leads to ineffective assistance. —

Where there is ineffective assistance of counsel due to the deliberate conduct of the trial judge, as in the appointment of counsel where there is a known conflict of interest, the deterrence rationale remains applicable, and reversal will be automatic. Risher v. State, 523 P.2d 421 (Alaska 1974).

Appointment of private counsel. —

Defendant who failed to substantiate a legal conflict between her interests and other interests advocated by the Public Defender Agency or the Office of Public Advocacy, was not entitled to private counsel, either to represent her interests generally or to counsel her on potential conflicts. Jerrel v. State, 851 P.2d 1365 (Alaska Ct. App. 1993), cert. denied, 510 U.S. 1100, 114 S. Ct. 942, 127 L. Ed. 2d 232 (U.S. 1994), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Defendant’s counsel appointed to represent co-conspirator. —

Where a trial judge compromised the effectiveness of defendant’s counsel by appointing him, over the defendant’s personal objection, to represent an alleged co-conspirator at the same trial, it was not necessary for the defendant to show prejudice; the appointment constituted reversible error per se. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Dangers of joint representation to defendant’s right to counsel. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978); State v. Celikoski, 866 P.2d 139 (Alaska Ct. App. 1994).

Duty of court to advise of such dangers. —

After a mandate is issued, the trial judge must personally advise the defendant of potential dangers inherent in dual representation. If the record fails to establish a “satisfactory” inquiry, the burden shifts to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist. Moreau v. State, 588 P.2d 275 (Alaska 1978).

No failure of counsel to explain elements of offense and possible sentence. —

Defendant failed to prove that his trial counsel’s alleged failure to explain the elements of the offense of felony murder, as well as his alleged failure to advise him that the sentence actually imposed on the first-degree murder charge could have been imposed, denied defendant the effective assistance of counsel. Morgan v. State, 582 P.2d 1017 (Alaska 1978).

Failure of counsel to move to dismiss deficient indictment. —

Trial attorney’s failure to move to dismiss the first-degree murder count on the ground that the indictment was fatally deficient since it did not contain factual allegations as to the burglary not in a dwelling sufficient to allege felony murder was not tantamount to ineffective assistance of counsel. Morgan v. State, 582 P.2d 1017 (Alaska 1978).

Assistance of counsel must be effective. —

The constitutional guarantee of assistance of counsel means that such assistance must be effective. Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (U.S. 1970); McCracken v. State, 521 P.2d 499 (Alaska 1974); Brown v. State, 601 P.2d 221 (Alaska 1979).

The mere fact that counsel represents an accused does not assure this constitutionally-guaranteed assistance. The assistance must be “effective” to be of any value. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

This guarantee includes assistance of counsel which is effective. Lewis v. State, 469 P.2d 689 (Alaska 1970).

A defendant is entitled not just to the assistance of counsel, but to the “effective” assistance of counsel. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The constitutional right to assistance of counsel will be considered to have been denied if incompetence of counsel renders ineffective the legal assistance to which a defendant in a criminal case is entitled. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense — a trial where the government is put to its burden of proving guilt beyond a reasonable doubt, in accordance with established principles of law and fundamental notions of fair play and substantial justice. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

“Effective assistance” describes a procedural requirement as distinguished from a standard of skill. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense — a trial where the government is put to its burden of proving guilt beyond a reasonable doubt in accordance with established principles of law and fundamental notions of fair play and substantial justice. Condon v. State, 498 P.2d 276 (Alaska 1972); McCracken v. State, 521 P.2d 499 (Alaska 1974).

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Not every error by counsel constitutes incompetent representation. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Effective assistance of counsel does not mean that trial counsel’s every mistake in judgment, error in trial strategy, or misconception of law would deprive an accused of a constitutional right. Determining whether the demands of due process were met requires a decision as to whether upon the whole course of the proceedings, and in all the attending circumstances, there was a denial of fundamental fairness; it is inevitably a question of judgment and degree. Condon v. State, 498 P.2d 276 (Alaska 1972).

Criticism of “mockery and farce” test. —

See Brown v. State, 601 P.2d 221 (Alaska 1979).

In past decisions the supreme court read “effective assistance” to describe a procedural requirement rather than a standard of skill. In so doing it adopted a standard that unless the conduct of counsel is “so incompetent as to deprive his client of a trial in any real sense — render the trial a mockery and a farce . . .” then it will not reverse the conviction. McCracken v. State, 521 P.2d 499 (Alaska 1974).

The “mockery and farce” test in determining what constitutes effective assistance of counsel has been criticized for placing an undue burden on the defendant and for being unduly vague and difficult to apply. McCracken v. State, 521 P.2d 499 (Alaska 1974); Risher v. State, 523 P.2d 421 (Alaska 1974).

Test in determining effective assistance of counsel. —

Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations. Risher v. State, 523 P.2d 421 (Alaska 1974); Winkler v. State, 580 P.2d 1167 (Alaska 1978); Morgan v. State, 582 P.2d 1017 (Alaska 1978); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Lawyers may display a wide spectrum of ability and still have their performance fall within the range of competence displayed by one of ordinary training and skill in the criminal law. It is only when the ability is below the nadir of that range that it may be held to constitute a deprivation of effective assistance of counsel. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

All that is required of counsel is that his decisions, when viewed in the framework of trial pressures, be within the range of reasonable actions which might have been taken by an attorney skilled in the criminal law, regardless of the outcome of such decisions. Risher v. State, 523 P.2d 421 (Alaska 1974); Winkler v. State, 580 P.2d 1167 (Alaska 1978); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981); Nielsen v. State, 623 P.2d 304 (Alaska 1981).

The following test has been suggested to determine whether an accused has been accorded effective assistance of counsel: Whether counsel exhibited the normal and customary degree of skill possessed by attorneys who are fairly skilled in the criminal law and who have a fair amount of experience at the criminal bar. McCracken v. State, 521 P.2d 499 (Alaska 1974).

The defendant is not entitled to error-free representation. Nor will the court second guess trial counsel on the basis of hindsight. All that is required is that counsel’s representation fall within the range of reasonable actions which might have been taken by an attorney reasonably skilled in the criminal law, regardless of the outcome. Brown v. State, 601 P.2d 221 (Alaska 1979).

It is not enough for defendant to show that defense counsel could have done certain things. The standard is whether, at the time counsel made his decision, the judgment fell below a minimum level of competence. Brown v. State, 601 P.2d 221 (Alaska 1979).

The Alaska test of prejudice is akin to the harmless error test applied to errors of constitutional magnitude. Wilson v. State, 711 P.2d 547 (Alaska Ct. App. 1985).

A competent counsel does not necessarily have to raise every possible motion on behalf of a client. Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981).

The conduct of counsel must have contributed to eventual conviction. Risher v. State, 523 P.2d 421 (Alaska 1974).

Because effective assistance embodies the concept of materially aiding in the defense, conduct or omissions which do not somehow contribute to a conviction by their failure to aid in the defense cannot constitute a constitutional deprivation of assistance of counsel. Risher v. State, 523 P.2d 421 (Alaska 1974).

To prevail on a claim of ineffective assistance of counsel, a defendant must show a reasonable doubt that counsel’s incompetence affected the outcome of the trial. Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987).

Thus, two-pronged test must be met before reversal. —

Before reversal will result, there must first be a finding that counsel’s conduct either generally throughout the trial or in one or more specific instances did not conform to the standard of competence which the supreme court has enunciated. Secondly, there must be a showing that the lack of competency contributed to the conviction. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981); Nielsen v. State, 623 P.2d 304 (Alaska 1981); Wilson v. State, 711 P.2d 547 (Alaska Ct. App. 1985).

If the first burden of the test for unconstitutional deprivation of counsel has been met, all that is required additionally is to create a reasonable doubt that the incompetence contributed to the outcome. Risher v. State, 523 P.2d 421 (Alaska 1974); Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

In Risher v. State , 523 P.2d 421 (Alaska 1974), the supreme court abandoned the “mockery and farce” test. In its place it substituted a two-prong test of ineffective assistance: (1) Whether counsel’s performance, either generally or in some specific instance, fell below what would be expected of a lawyer with ordinary training and skill in the criminal law, and (2) whether this ineffective performance must in some way have contributed to the conviction. Green v. State, 579 P.2d 14 (Alaska 1978).

In the two-part test for determining the effectiveness of counsel, defendant must first show that his lawyer’s skill fell below that of a lawyer with ordinary training and skill in criminal law, and second, that this defective performance contributed in some way to his conviction. Larson v. State, 614 P.2d 776 (Alaska 1980).

Failure to warn defendant of certain direct consequences of plea. —

If counsel had failed to warn defendant of certain direct consequences of his plea, the supreme court would not only have concluded above that this plea was involuntary, but it would also conclude that defendant had not been provided with a genuine proceeding and therefore that he had been denied the effective assistance of counsel. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Affidavit sufficiency. —

Dismissal of inmate’s petition for postconviction relief was appropriate because he failed to show that his trial counsel was ineffective; inmate’s only assertion that he was prejudiced by his attorney’s failure to object to testimony was contained in a single sentence of the inmate’s postconviction affidavit. Burton v. State, 180 P.3d 964 (Alaska Ct. App. 2008).

Error on counsel’s part with regard to collateral consequences cannot be said to have infected the proceedings to such an extent as to have prevented their being either genuine or of a judicial character. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Failure of counsel to inform of the collateral possibility of deportation does not constitute denial of the right to the effective assistance of counsel. Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (U.S. 1973).

Omission of instruction on lesser-included offense. —

The trial court did not err in concluding that the defendant’s trial counsel breached his duty of competent representation where counsel, having seen that fourth-degree assault was properly a lesser-included offense of the crime of attempted kidnapping for which defendant was convicted, and having affirmatively proposed an instruction including the lesser-included offense, thereafter acted incompetently in neglecting to object to the trial court’s omission of the proposed instruction. State v. Laraby, 842 P.2d 1275 (Alaska Ct. App. 1992).

Tactical decision not to request lesser-included offense instructions. —

Trial court concluded that defendant had not overcome the presumption that his counsel made a reasonable tactical decision by not requesting lesser-included offense instructions; Alaska R. Prof. Conduct 1.2(a) limits the client’s authority to make decisions over which he has ultimate authority, so counsel has the ultimate authority to make other decisions governing trial tactics, including whether to request lesser-included offense instructions. Simeon v. State, 90 P.3d 181 (Alaska Ct. App. 2004).

Tactical decision not to file cross-petition for discretionary review. —

After the client has obtained a reversal of conviction in court of appeals and the state has filed a petition for hearing in the Alaska supreme court, the decision to file a cross-petition for hearing on behalf of the defendant is a decision for the attorney. Smith v. State, 185 P.3d 767 (Alaska Ct. App. 2008).

Attorney’s litigation strategies. —

Dismissal of inmate’s petition for postconviction relief was appropriate where although 10 suggested alternative litigation strategies were indeed plausible ways of arguing inmate’s case, none of those alternative strategies stood out as significantly better than the litigation strategy that inmate’s trial attorney pursued. Burton v. State, 180 P.3d 964 (Alaska Ct. App. 2008).

Right to reasonable time to prepare for trial. —

It is unquestionable that the right to the assistance of counsel of necessity includes the concomitant right to have a reasonable time in which to prepare for trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Where the case was relatively simple, 13 days was quite sufficient a period for defendants’ counsel to prepare their defense in a larceny prosecution. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

The fact that counsel did not use the time available to his and appellant’s advantage affords no basis for finding abuse of discretion in the trial court’s denial of the continuance. If it were otherwise, a trial court would be obliged to continue every case at the defendant’s request where defendant’s counsel alleged that he was not prepared to go to trial, regardless of how much prior notice he may have had of the trial setting. This could lead to interminable delays in disposing of cases. The ends of justice would not be well served by such an arrangement. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

Unusual fee arrangement is not ineffective assistance of counsel. —

Where the state agreed to pay defendant’s appointed counsel $15,000 and the letter summarizing the agreement also stated, “in the event that [defendant] has funds available to compensate you additionally, you are certainly free to negotiate whatever price you can with [defendant],” the trial judge did not err in finding that counsel did not have a conflict of interest which would result in ineffective assistance of counsel. Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987).

Defendant cannot purposely frustrate attorney’s efforts. —

A constitutional right to effective assistance of counsel does not encompass the right of a defendant to purposely frustrate his attorney’s efforts on his behalf and then attempt to escape conviction on the basis of his own lack of cooperation by claiming his appointed counsel was ineffective. Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S. Ct. 653, 70 L. Ed. 2d 628 (U.S. 1981).

Appointed counsel same as privately employed counsel. —

There is no valid distinction between appointed counsel and privately employed counsel in determining the adequacy of representation of an accused. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Sanctions available where counsel is dilatory. —

See McKinnon v. State, 526 P.2d 18 (Alaska 1974).

Counsel shared by co-defendants. —

In a prosecution for larceny, where co-defendants privately retained and shared counsel and the record showed that the counsel conducted a vigorous defense, and where counsel voiced no objection to the difficulty of arguing effectively for both clients until all the evidence had been taken and then could articulate no more than a feeling of “definite potential conflict” between his clients, effective assistance of counsel had not been denied. Sullivan v. State, 509 P.2d 832 (Alaska 1973).

The requirement of a coat and tie for court appearances does not impair the ability of an attorney to represent his clients effectively. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

Failure of counsel to attack indictment. —

The court of appeals declined to hold that counsel’s failure to attack an indictment automatically renders his legal assistance incompetent or ineffective. Gaona v. State, 630 P.2d 534 (Alaska Ct. App. 1981).

Failure to advise defendant of unenforceability of plea agreement in which defendant would plead guilty or no contest to a second count if convicted of a first count constituted ineffective representation. Smith v. State, 717 P.2d 402 (Alaska Ct. App. 1986).

Failure to challenge a juror for cause. —

Defendant had not stated a claim for ineffective assistance of counsel when counsel failed to challenge a juror for cause after the juror testified that he was a personal friend of the investigating officer, the investigating officer was staying at the juror’s home during the trial, and the juror had a family member that had been a victim of a sexual abuse crime, similar to the crime charged against defendant; there was no showing that the juror was actually biased. Bryant v. State, 115 P.3d 1249 (Alaska Ct. App. 2005).

Considering claim of ineffective assistance on appeal. —

Henceforth the court of appeals will not entertain claims of ineffective assistance of counsel on appeal unless the defendant has first moved for a new trial or sought post-conviction relief, supporting the claim with affidavits alleging facts which would establish a basis for relief. If defendant’s affidavits establish a prima facie case of ineffective assistance of counsel, the state must then be given an opportunity to file counteraffidavits; if material factual conflicts exist or the state requests an opportunity to cross-examine defendant’s witnesses then an evidentiary hearing should be held. To the extent that Alaska Cr. R. 33 places unreasonable time limitations on the presentation of this issue, the trial court should exercise its discretion pursuant to Cr. R. 53 to provide reasonable time. Barry v. State, 675 P.2d 1292 (Alaska Ct. App. 1984).

Where it did not appear that defendant moved for a new trial or sought post-conviction relief in the trial court, the court of appeals therefore declined to consider his claim of ineffective assistance of counsel at that time; however, since the appeal was filed prior to publication of the Barry decision ( Barry v. State , 675 P.2d 1292 (Alaska Ct. App. 1984)), the court of appeals assumed that appellate counsel did not have sufficient opportunity to learn of Barry and comply with its requirements and therefore remanded the case to the district court to permit the defendant to litigate his claim of ineffective assistance of counsel. Hernandez v. State, 691 P.2d 287 (Alaska Ct. App. 1984).

Claims of ineffective assistance of counsel were properly remanded where trial court did not set forth specific findings on the standard of competence of an attorney of ordinary training and skill, if defendant’s attorney fell below that range, and what evidence defendant presented to overcome the presumption of competence conferred upon counsel’s tactical decisions. Bryant v. State, 115 P.3d 1249 (Alaska Ct. App. 2005).

Excusing attorney from providing representation. —

An attorney’s statement that he or she is not competent to take a particular case should not automatically excuse the attorney from providing representation; rather a showing that an attorney is not competent must be made to the court, and if the court determines that the attorney is in fact competent and the attorney still refuses to take the case, he or she may be held in contempt if proper procedures are followed. Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), overruled, De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Ineffective assistance as matter of law. —

A defendant received ineffective assistance of counsel as a matter of law in making his decision to plead no contest to one count of manslaughter, AS 11.41.120(a)(1) , and three counts of assault in the second degree, former AS 11.41.210(a)(3) , where his attorney had minimal knowledge of the facts, did not review the police reports (other than the initial accident report obtained by his partner), the grand jury testimony or the medical and blood-alcohol reports, did not interview any witnesses, did not understand the applicable law, did not research any legal issues other than sentencing, and underestimated his client’s potential exposure to possible sentences on the manslaughter charge. Arnold v. State, 685 P.2d 1261 (Alaska Ct. App. 1984).

The decisions of counsel at trial did not support a finding that defendant was denied the effective assistance of counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

When defense counsel did not seek more definitive testing of DNA evidence from the crime scene, this was not ineffective assistance of counsel, but rather a tactical decision based on the concern that more definitive testing would more closely link defendant to the crime scene. Osborne v. State, — P.3d — (Alaska Ct. App. Feb. 11, 2005), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2005), sub. op., 110 P.3d 986 (Alaska Ct. App. 2005).

Defendant not denied effective assistance of counsel. —

See Springer v. State, 666 P.2d 431 (Alaska Ct. App. 1983); Hoeck v. Municipality of Anchorage, 698 P.2d 666 (Alaska Ct. App. 1985).

Because the facts in the application showed that defendant’s trial attorney made a tactical choice about not calling a forensic pathologist and because defendant had not alleged facts that established any prejudice, his ineffective assistance claim was meritless; defendant’s attorney was not required to provide him with an analysis of his potential for parole release when she recommended that he accept the charge bargain. Cole v. State, 72 P.3d 322 (Alaska Ct. App. 2003), overruled in part, David v. State, 372 P.3d 265 (Alaska Ct. App. 2016).

Defendant charged with sexual abuse was not ineffectively assisted by counsel based upon counsel’s stated strong opposition to sexual abuse of children; a lawyer’s representation of a client does not constitute an endorsement of the client’s social or moral views or activities, and lawyer’s strong views did not render his representation incompetent. Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007).

Where court of appeals reversed defendant’s conviction for kidnap and rape based on violation of his Miranda rights, and the state filed a petition for hearing in the Alaska supreme court on the Miranda issue, defendant’s appellate attorney did not provide ineffective assistance of counsel by failing to file a cross-petition for hearing seeking discretionary review of the suggestiveness of defendant’s photo lineup; because the victim had observed her assailant three times before the attack, any error in the photo lineup was harmless. Smith v. State, 185 P.3d 767 (Alaska Ct. App. 2008).

Reinstitution of sentence appeal. —

Failure by new appellate counsel, appointed when original was seriously ill and near death, to seek reinstatement of appeal after its dismissal for non-prosecution, justified reinstitution of the sentence appeal. Labrake v. State, 152 P.3d 474 (Alaska Ct. App. 2007).

Failure of defendant’s counsel to raise issue of alleged unconstitutional post-indictment identification at trial did not waive the issue. McCracken v. State, 521 P.2d 499 (Alaska 1974).

C.Self Representation

Right to self-representation. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

An accused has a constitutional right of self-representation. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

Defendant did not possess the requisite minimum capability to conduct his own defense in a prosecution for assault, where his paranoid delusions affected his perception of the evidence and fettered any ability to appreciate the extent of his own disability. Adams v. State, 829 P.2d 1201 (Alaska Ct. App. 1992).

A defendant can be deprived of the right to represent himself only in the fairly rare circumstances in which the defendant is unable to present a rational and coherent defense. Adams v. State, 829 P.2d 1201 (Alaska Ct. App. 1992).

The right to self-representation is not absolute. —

In order to prevent a perversion of the judicial process, a trial judge should first ascertain whether a prisoner is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed pro se. Second, the trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Before an accused can choose to represent himself in a criminal proceeding, he must first knowingly and intelligently waive his right to counsel. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

When counsel waived. —

A nonindigent defendant who fails to retain an attorney within a reasonable time before trial may be found to have waived his right to counsel. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

Waiver of counsel must be made with knowledge of certain facts. —

Waiver of counsel must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances of mitigation thereof and all other facts essential to a broad understanding of the whole matter. Gregory v. State, 550 P.2d 374 (Alaska 1976).

To insure that all defendants enjoy the right to counsel, it must be clear from the record that the person has been informed of the role of a defense attorney and the advantages of being represented by one in a criminal proceeding. Only after this information is placed before the accused can it be said that he has the capacity, in a legal sense, to make a knowledgeable waiver of his right to counsel. Gregory v. State, 550 P.2d 374 (Alaska 1976); Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

Once it appears that an accused intends to waive the right to the assistance of counsel, the trial court must take the additional steps to determine that the accused fully understands the right he is relinquishing. The degree of inquiry necessary should be tailored to the particular characteristics of the accused, such as his lack of education or language disability, and to the complexities of the legal issues raised by the charge against him. In many cases, this duty will be minimal. For instance, traffic misdemeanor cases are usually readily understood by lay persons and the consequences of a finding of guilt are typically not severe. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978); Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980); Williams v. State, 616 P.2d 881 (Alaska 1980).

Regarding the right of self-representation and the need to avoid perverting the judicial process, a trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Criminal Rule 39(b)(3) provides that, at the trial stage, counsel should be appointed unless the defendant “demonstrates that he understands the benefits of counsel and knowingly waives the same.” O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

Where the record is devoid of an inquiry into the defendant’s comprehension of the benefits of counsel and, in short, fails to demonstrate a knowing and intelligent waiver by defendant of the right to assistance of counsel, defendant’s conviction must be set aside and a new trial ordered. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

In order for there to be a constitutional waiver of the right to counsel, the trial judge must satisfy himself that the defendant is capable of presenting his case in a rational and coherent manner and that the defendant understands the benefit he is giving up by foregoing legal counsel. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

Before accepting a defendant’s waiver of counsel and his election to proceed pro se, it was incumbent on the superior court to inquire into more than just his intelligence, background and general competency to present his case. The court was additionally obligated to advise the defendant of the right to counsel and the importance of having counsel, in order to ensure that the defendant understood “precisely what he was giving up by declining the assistance of counsel.” Beyond that, the court was required to make the defendant aware of the dangers and disadvantages of self-representation, so that the record would have established that he knew what he was doing and his choice was made with eyes open. Evans v. State, 822 P.2d 1370 (Alaska Ct. App. 1991).

An appointed lawyer’s conclusory assurance at the outset of the waiver hearing that he had discussed with the defendant what a lawyer could do for him and that the defendant understood was not an adequate substitute for a detailed, on-record explanation of the benefits of counsel. Nor did such an assurance replace the need for an affirmative inquiry by the court as to whether the defendant actually understood the benefits of counsel and was willing to relinquish those benefits. Evans v. State, 822 P.2d 1370 (Alaska Ct. App. 1991).

The record must reflect a clear waiver of the right to counsel. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

In order to find a waiver, the record must clearly disclose that the accused “intelligently, competently, understandingly, and freely waived” the benefits of legal representation. Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

Because the right of an accused to be represented by counsel is so fundamental, the trial court’s inquiry into whether the accused was apprised of the benefits of legal representation and whether he intelligently, competently, understandingly and freely waived such benefits should appear affirmatively on the record. O'Dell v. Municipality of Anchorage, 576 P.2d 104 (Alaska 1978).

Waiver of the right to counsel must appear affirmatively on the record, and will not be inferred. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

A waiver of the right to be represented by counsel in a criminal prosecution is not to be lightly inferred. Ledbetter v. State, 581 P.2d 1129 (Alaska 1978).

Court examination sufficient to constitute voluntary waiver of right to individual counsel. See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Second hearing as to waiver held unnecessary. —

Where a full pretrial hearing was held and the trial judge determined that defendant waived his right to counsel, a second hearing on the matter was unnecessary after mistrial to determine whether he waived his right on retrial. Gottschalk v. State, 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3010, 65 L. Ed. 2d 1112 (U.S. 1980).

Defendant’s ignorance of law, standing alone, will not preclude self-representation. Where the defendant lacks the capacity, however, to make a coherent presentation, the trial court can require that the defendant be represented by counsel. Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988).

Findings required for self-representation. —

Trial court can only permit self-representation if it finds that the defendant, (1) having the competency to knowingly, intelligently, and voluntarily waive counsel, (2) does waive assistance of counsel, and (3) is at least minimally capable of presenting a coherent case to the jury. Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988).

No right to hybrid representation. —

Although a defendant has a constitutional right to counsel, and the right to self-representation is also constitutionally protected, the right to participate as co-counsel or have hybrid representation is not protected. Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

The right to participate as co-counsel or to have hybrid representation is not constitutionally protected. Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

The trial court is not required to allow a defendant who is represented by counsel to file his own motions. Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

Defendant was properly denied co-counsel status where the trial judge was convinced that the defendant was incapable of presenting his allegations in a rational and coherent manner, where the defendant’s various attorneys expressed an inability to understand the defendant’s requests, and where their respective opposition to presenting the defendant’s various claims established a lack of the coordination and cooperation necessary to the co-counsel relationship. Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988).

D.Stage Where Required

Police eliciting statements during drug investigation. —

Police officers who were conducting a drug investigation were not precluded from contacting defendant and eliciting statements without the presence of counsel, even though defendant had had counsel appointed to represent him on a charge of possession of cocaine that arose in another locality. Abdullah v. State, 816 P.2d 1386 (Alaska Ct. App. 1991).

Appointment of counsel at preliminary hearing. —

The U.S. Supreme Court has not interpreted the federal constitution as mandating the appointment of counsel at all preliminary hearings. It is only when the preliminary hearing is in the nature of a “critical stage” in regard to the particular jurisdiction’s criminal proceedings that a defendant has a constitutional right to court appointed counsel. A similar construction of Alaska’s constitution is adopted. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Preliminary hearing was not a critical stage in proceedings; hence, trial court did not err in failing to appoint counsel for accused. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Custodial interrogations. —

Given the Miranda protections, which are specifically tailored to the custodial interrogation context, there are compelling policy considerations against an extension of the right to counsel under either the 6th amendment or the corresponding section of the Alaska Constitution to all custodial interrogations. Eben v. State, 599 P.2d 700 (Alaska 1979).

Lack of counsel at a preliminary hearing did not unconstitutionally taint defendant’s subsequent grand jury indictment, trial and conviction for assault with a dangerous weapon. Gipson v. State, 575 P.2d 782 (Alaska 1978).

A proceeding under Cr. R. 5 before a judge on the day after a defendant’s arrest is not a “critical stage” requiring the assistance of counsel. No plea may be taken at that stage, and the probable cause determination made pursuant to subsection (e)(1) of the rule neither involves the examination of witnesses nor precludes the state from seeking a grand jury indictment should no probable cause be found. Furthermore, at the preliminary examination, which must follow within 10 days if the defendant is in custody, probable cause is determined de novo, and the defendant is assured the presence of counsel. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Right to counsel where defendant initiated contact with police. —

Even if the court of appeals were to adopt the rule in United States v. Thomas , 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S. Ct. 2758, 37 L. Ed. 2d 160 (Alaska Ct. App. 1973), which prevents the police from questioning a represented defendant unless they first notify his attorney and give the attorney an opportunity to be present, that rule would not apply to a situation where a defendant initiated the contact with the police and voluntarily made statements that were not the product of interrogation or “deliberation elicitation.” Balthazor v. State, 653 P.2d 662 (Alaska Ct. App. 1982).

Voluntary statement held admissible. —

Defendant’s voluntary admission that he removed a handgun from the scene of a homicide was admissible because no adversary proceedings had commenced when defendant made this statement to police at his home; defendant’s right to counsel had not attached. State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006).

Preindictment examinations. —

The rationale of requiring presence of counsel at investigatory proceedings conducted in an adversary context does not extend to preindictment physical or psychological examinations which are conducted where the welfare of the prisoner is a significant factor. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Psychiatric interview by state’s witness. —

The guarantee of effective assistance of counsel afforded by Alaska’s constitution required the presence of defendant’s attorney throughout a psychiatric interview which was conducted by the government’s expert witness. Houston v. State, 602 P.2d 784 (Alaska 1979).

A defendant is entitled to have his attorney present during a court-ordered examination by the state’s psychiatrist. Howe v. State, 611 P.2d 16 (Alaska 1980).

Identification at scene of crime. —

Where the police in rape case were notified immediately after the crime occurred and arrived on the scene shortly thereafter; the victim and suspects were on the scene and the victim’s memory was fresh; and the identification was made at approximately 4:00 a.m., when providing counsel would have been extremely difficult the identification of defendant by the victim was reliable, and defendant’s right to counsel was not violated. Walker v. State, 652 P.2d 88 (Alaska 1982).

Right to counsel at preindictment lineup. —

In balancing the need for prompt investigation against a suspect’s right to fair procedures, the supreme court held that a suspect who is in custody is entitled to have counsel present at a preindictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation. Blue v. State, 558 P.2d 636 (Alaska 1977); Benefield v. State, 559 P.2d 91 (Alaska 1977). See Howe v. State, 611 P.2d 16 (Alaska 1980).

Absent exigent circumstances, counsel should be provided even though the lineup is before formal charges or indictment. Blue v. State, 558 P.2d 636 (Alaska 1977).

The presence of counsel at a show-up is not mandated if the circumstances call for an immediate identification as part of a prompt and purposeful investigation. Vessell v. State, 624 P.2d 275 (Alaska 1981).

Defendant’s right to preindictment counsel held outweighed by exigencies involved. See Benefield v. State, 559 P.2d 91 (Alaska 1977).

Counsel not mandated for preindictment lineup held within three hours of robbery but required for preindictment lineup held several days after. Blue v. State, 558 P.2d 636 (Alaska 1977).

Breathalyzer exam is not “critical stage.” —

A breathalyzer exam of a person suspected of driving while intoxicated is not a “critical stage” at which the constitution requires counsel’s presence. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Defendant was not denied his constitutional and statutory right to counsel when the police refused his request for a second call to any attorney before deciding whether to take the breathalyzer test. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Indigency hearing held not critical stage. —

The hearing for determination of eligibility for appointed counsel is not a critical stage of the case, and a defendant is not entitled to appointed counsel for that hearing. Benson v. State, 273 P.3d 1144 (Alaska Ct. App. 2012).

Right to counsel at every stage of trial, including return of verdict. See Koehler v. State, 519 P.2d 442 (Alaska 1974).

A post-indictment lineup is a “critical stage” of the prosecution at which the accused was entitled to the aid of counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Since a confrontation compelled by the state between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial, conducting such a confrontation without notice to and in the absence of an accused’s counsel was a denial of the 6th amendment right to counsel. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Fundamental guidelines for assessing the propriety of post-indictment identifications. See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Right to counsel in post-conviction proceeding. —

Indigent prisoners seeking post-conviction relief must be provided with counsel at the time their application is filed but such a petitioner has a right to reject counsel and represent himself so long as his waiver of counsel is knowing, intelligent, and voluntary and the trial court is satisfied that the petitioner can competently represent himself. Hampton v. Huston, 653 P.2d 1058 (Alaska Ct. App. 1982). See note to Alaska Const. art. I, § 7, analysis line II F, Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971), under catchline “The denial of post-conviction right to counsel.”.

Appointment of counsel for indigent persons seeking post-conviction relief is mandatory in all cases absent a knowing, intelligent, and voluntary waiver. Hampton v. Huston, 653 P.2d 1058 (Alaska Ct. App. 1982).

No right to counsel at video taping of field sobriety tests. —

A person suspected of operating a motor vehicle while under the influence of intoxicating liquor has no right to have counsel present during the video taping of field sobriety tests performed at the request of the arresting officer. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Handwriting samples obtained without assistance of counsel. —

Trial court erred in admitting into evidence certain handwriting samples obtained from accused in violation of his constitutional right to counsel. Roberts v. State, 458 P.2d 340 (Alaska 1969).

Right to counsel in in rem forfeiture proceedings. —

An indigent claimant does not have a constitutional right to the assistance of counsel at public expense in a separate civil in rem proceeding brought by the state pursuant to AS 17.30.112(a) . Resek v. State, 706 P.2d 288 (Alaska 1985).

Collateral references. —

21A Am.Jur.2d, Criminal Law, §§ 880 to 1179; 81 Am.Jur.2d, Witnesses, §§ 2 to 17, 800 et seq.

22A C.J.S., Criminal Law, § 581 et seq.; 98 C.J.S., Witnesses, § 445 et seq.

Scope and extent, and remedy or sanctions for infringements, of accused’s right to communicate with his attorney. 5 ALR3d 1360.

Right of defendant in criminal case to inspection of statement of prosecution’s witness for purpose of cross-examination or impeachment. 7 ALR3d 181.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question. 9 ALR3d 990.

Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide. 11 ALR3d 834.

Propriety of increased punishment on new trial for same offense. 12 ALR3d 978.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 ALR3d 1261.

Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona. 25 ALR3d 1076.

Propriety and prejudicial effect of counsel’s representing defendant in criminal case notwithstanding counsel’s representation or former representation of prosecution witness. 27 ALR3d 1431.

Single or separate larceny predicated upon stealing property from different owners at the same time. 37 ALR3d 1407.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 ALR4th 310.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Voluntariness of confession as affected by police statements that suspect’s relatives will benefit by the confession. 51 ALR4th 495.

Paternity proceedings: right to jury trial. 51 ALR4th 565.

Relief available for violation of right to counsel at sentencing in state criminal trial. 65 ALR4th 183.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of guilty plea—state cases. 65 ALR4th 719.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time. 70 ALR4th 632.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution — modern state cases. 74 ALR4th 223.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction. 74 ALR4th 277.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 ALR4th 631.

What constitutes assertion of right to counsel following Miranda warnings — state cases. 83 ALR4th 443.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist. 85 ALR4th 19.

When does delay in imposing sentence violate speedy trial provision. 86 ALR4th 340.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant. 86 ALR4th 698.

Adequacy of defense counsel’s representation of criminal client — issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case. 80 ALR5th 55.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality. 80 ALR5th 469.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 ALR5th 225.

Adequacy of defense counsel’s representation of criminal client—conduct at trial regarding issues of insanity. 95 ALR5th 125.

Denial of, or interference with, accused’s right to have attorney initially contact accused. 96 ALR5th 327.

Validity and efficacy of minor’s waiver of right to counsel — cases decided since application of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (U.S. 1967). 101 ALR5th 351.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings. 102 ALR5th 227.

Denial of accused’s request for initial contact with attorney — drunk driving cases. 109 ALR5th 611.

Validity and application of computerized jury selection practice or procedure. 110 ALR5th 329.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory statements. 124 ALR5th 1.

What constitutes “custodial interrogation” within rule of rights requiring that suspect be informed of his or her federal constitutional rights before custodial interrogation — at border or functional equivalent of border, 68 ALR6th 607.

Criminal defendant’s right to electronic recordation of interrogations and confessions, 69 ALR6th 579.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — pretrial motions — suppression motions where warrant was involved, 72 ALR6th 1.

Validity, construction, and application of state statutes and rules governing requests for postconviction DNA testing, 72 ALR6th 227.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying homicide and assault offenses, 72 ALR6th 437.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying sexual offenses, 74 ALR6th 69.

Construction and application by state courts of Supreme Court’s ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) that defense counsel has obligation to advise defendant that entering guilty plea could result in deportation, 74 ALR6th 373.

Necessity or propriety of court’s provision of cocounsel to criminal defendant who is already represented by counsel — state prosecutions, 83 ALR6th 465.

Necessity that Miranda warnings include express reference to right to have attorney present during interrogation. 77 ALR Fed. 123.

What constitutes assertion of right to counsel following Miranda warnings — federal cases. 80 ALR Fed. 622.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as “testimony” resulting in waiver of defendant’s privilege against self-incrimination. 81 ALR Fed. 892.

Constitutional right to counsel as ground for quashing or modifying federal grand jury subpoena directed to attorney. 83 ALR Fed. 504.

Availability of sole shareholder’s Fifth Amendment privilege against self-incrimination to resist production of corporation’s books and records — modern status. 87 ALR Fed. 177.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of waiver of jury trial. 103 ALR Fed. 867.

Right to jury trial on issue of damages in copyright infringement actions under 17 U.S.C.A. § 504. 163 ALR Fed. 467.

Right of enemy combatant to counsel. 184 ALR Fed. 527.

Comment note: Ineffective assistance of counsel in removal proceedings — legal bases of entitlement to representation and requisites to establish prima facie case of ineffectiveness, 58 ALR Fed. 2d 363.

Comment note: Ineffective assistance of counsel in removal proceedings — particular acts, 59 ALR Fed. 2d 151.

Comment note: Ineffective assistance of counsel in removal proceedings — particular omissions or failures, 60 ALR Fed. 2d 59.

When does use of pepper spray, mace, or other similar chemical irritants constitute violation of constitutional rights. 65 ALR6th 93.

Section 12. Criminal Administration.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.

Cross references. —

For appeal of a sentence of imprisonment lawfully imposed, see AS 12.55.120 ; for punishments violative of due process, see notes to Alaska Const. art. I, § 7 under analysis line F.

Effect of amendments. —

The amendment, effective December 30, 1994 (18th Legislature’s Legislative Resolve No. 58), in the second sentence, substituted “Criminal” for “Penal,” deleted “on the principle of reformation and” following “shall be based,” inserted “the following:,” and added “, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation” at the end.

Opinions of attorney general. —

A program authorizing the use of state prisoners on a voluntary basis on governmental public works projects is proper. 1960 Alas. Op. Att'y Gen. No. 22.

Notes to Decisions

Operation of the system of penal administration in Alaska is dependent upon a properly staffed and functioning division of corrections which has, in addition to probation and parole functions, the responsibility for treatment, rehabilitation, and custody of incarcerated offenders. State v. Chaney, 477 P.2d 441 (Alaska 1970).

Beneficiaries of constitutional requirement concerning penal administration. —

See Abraham v. State, 585 P.2d 526 (Alaska 1978).

State prisoner was entitled to bring constitutional claims under this section against a private correction company and its employees because the State of Alaska owed legal duties which were incorporated by reference into the contract between the state and the company; thus, the prisoner was an intended beneficiary of the contract between the state and the company. Rathke v. Corr. Corp. of Am., Inc., 153 P.3d 303 (Alaska 2007).

The underlying principles of penal administration in Alaska are reformation and protection of the public. Hartwell v. State, 423 P.2d 282 (Alaska 1967), overruled, State v. Carlin, 249 P.3d 752 (Alaska 2011).

The twin goals of sentencing are reformation of the offender and protection of the public. Both should be considered equally and punishment should not be emphasized to the exclusion of rehabilitation potential. Good v. State, 590 P.2d 420 (Alaska 1979).

Under Alaska’s constitution, the principles of reformation and the necessity of protecting the public constitute the touchstones of penal administration. Webb v. State, 580 P.2d 295 (Alaska 1978); Brookins v. State, 600 P.2d 12 (Alaska 1979).

The judiciary of this state and that section of the executive branch which administers the penal system (i.e., the division of corrections, Department of Health and Social Services), are constrained by the Alaska Constitution to base penal administration “on the principal of reformation and upon the need for protecting the public.” These principles are the “touchstones of penal administration.” Bordewick v. State, 569 P.2d 184 (Alaska 1977).

Sentence to serve principles. —

The twin goals of penal administration in Alaska, reformation of the offender and the need to protect the public would be best served by a sentence that accommodates treatment as well as protects society and reaffirms the societal norms. Hansen v. State, 582 P.2d 1041 (Alaska 1978).

Prison inmate’s right of access to rehabilitation programs. —

Record was insufficient to determine if rates charged inmates for local telephone calls violated a settlement agreement, inmates' constitutional right to rehabilitation, or inmates' statutory right to telephone calls, because (1) no party presented supporting evidence, and (2) the trial court made no findings. Antenor v. State, 462 P.3d 1 (Alaska 2020).

Prison inmate’s right of access to rehabilitation programs not violated. —

Barring an inmate's receipt of a computer programming book did not violate a state or federal right because (1) the action was rationally connected to the Department of Corrections' legitimate interest in protecting computer systems, (2) the inmate's right to receive publications was not denied per se, and (3) the inmate was allowed to obtain training on the subject. Antenor v. State, 462 P.3d 1 (Alaska 2020).

But action for rehabilitative treatment must be brought in civil lawsuit. —

Superior court lacked subject matter jurisdiction to decide in its sentencing orders the issue of whether defendants had a constitutional right to receive sex offender treatment while in prison under Alaska Const., art. I, § 12; issue could be brought in a civil lawsuit against the department of corrections, but not in an Alaska R. Crim. P. 35(a) motion. State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008).

Multiple goals encompassed. —

Under Alaska’s constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. Multiple goals encompassed within these broad constitutional standards include rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. State v. Chaney, 477 P.2d 441 (Alaska 1970); Nicholas v. State, 477 P.2d 447 (Alaska 1970); Deveroux v. State, 548 P.2d 1296 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Godwin v. State, 554 P.2d 453 (Alaska 1976); Abraham v. State, 585 P.2d 526 (Alaska 1978); Kelly v. State, 622 P.2d 432 (Alaska 1981).

The twin goals of penal administration in Alaska are reformation of the offender and the need to protect the public. Mattern v. State, 500 P.2d 228 (Alaska 1972).

Within the ambit of this section are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or, in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971); Newsom v. State, 533 P.2d 904 (Alaska 1975); Holloway v. State, 535 P.2d 467 (Alaska 1975); Andrews v. State, 552 P.2d 150 (Alaska 1976).

In implementing this provision, the supreme court has recognized the following goals of criminal sanctions: 1. Rehabilitation of the convicted offender into a noncriminal member of society. 2. Isolation of the offender from society to prevent criminal conduct during the period of confinement. 3. Deterrence of other members of the community who might have tendencies toward criminal conduct similar to those of the offender. 4. Deterrence of the offender himself after release. 5. Community condemnation or reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. Asitonia v. State, 508 P.2d 1023 (Alaska 1973); Perrin v. State, 543 P.2d 413 (Alaska 1975); Cleary v. State, 548 P.2d 952 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977); Walton v. State, 568 P.2d 981 (Alaska 1977); Ripley v. State, 590 P.2d 48 (Alaska 1979); Brookins v. State, 600 P.2d 12 (Alaska 1979).

Where the trial court in sentencing a defendant convicted of second degree murder considered (1) the nature and seriousness of the crime, (2) the need to rehabilitate defendant, (3) the need to protect society through isolating him, (4) the deterrent effect of the sentence both on defendant and others in the community, and (5) the effect of the sentence as a reaffirmation of societal norms, and where the trial court properly evaluated the information before it concerning defendant’s alcoholism and his need for training and supervision in financial affairs, the supreme court held that the trial court had properly evaluated his role in the sentencing process. Asitonia v. State, 508 P.2d 1023 (Alaska 1973).

The factors to be considered in sentencing are rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. Smothers v. State, 579 P.2d 1062 (Alaska 1978); Christie v. State, 580 P.2d 310 (Alaska 1978); Sumabat v. State, 580 P.2d 323 (Alaska 1978); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Wharton v. State, 590 P.2d 427 (Alaska 1979).

In regard to the purposes of sentencing, one of the goals to be achieved is “rehabilitation of the convicted offender into a noncriminal member of society.” Collins v. State, 574 P.2d 1278 (Alaska 1978).

In State v. Chaney , 477 P.2d 441 (1970), the supreme court has identified four sentencing goals: Rehabilitation of the offender, isolation of the offender from society, deterrence of the offender after his release and of others disposed to commit similar acts, and community condemnation of the offender because of his acts. Post v. State, 580 P.2d 304 (Alaska 1978).

Among the multiple goals encompassed within the broad constitutional standards of sentencing is the objective of rehabilitation of the offender into a noncriminal member of society. Morgan v. State, 582 P.2d 1030 (Alaska 1978).

The sentencing goals to be considered by a judge in determining an appropriate sentence for a particular offense include not only rehabilitation of the offender, but in addition, isolation of the offender in order to protect the public, deterrence of the offender and of other members of the community who might possess similar criminal tendencies and reaffirmation of societal norms embodying condemnation of the unlawful acts performed by the guilty person. Huff v. State, 568 P.2d 1014 (Alaska 1977); Bordewick v. State, 569 P.2d 184 (Alaska 1977).

Important goals of sentencing to be considered are isolation of the offender from society to prevent criminal conduct, future deterrence of the offender himself, deterrence of other members of the community, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. Brandon v. State, 581 P.2d 1116 (Alaska 1978).

Rehabilitation of the offender is an important goal to be achieved for the benefit of society and because it is a recognition of the intrinsic worth and the inherent dignity of man. State v. Lancaster, 550 P.2d 1257 (Alaska 1976).

Equally important in the imposition of sanctions is the need to recognize and express community condemnation of the offender’s antisocial conduct. State v. Lancaster, 550 P.2d 1257 (Alaska 1976).

The supreme court has repeatedly required the sentencing judge to consider, on the record, various goals or objectives to be achieved in sentencing, including among other factors the reformation or rehabilitation of the offender. Abraham v. State, 585 P.2d 526 (Alaska 1978).

Upon passing sentence, the trial court must give consideration to the goals of rehabilitation, isolation of the offender, deterrence of the offender and others criminally inclined and community condemnation of the offender. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

The goal of rehabilitation is a touchstone of penal administration and is mandated by this section. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

While rehabilitation is certainly one of the primary goals of sentencing, a court is not required to fashion a sentence to provide for rehabilitation if it finds that the potential for rehabilitation is nonexistent within the time constraints of the penalty for a particular offense. Bell v. State, 598 P.2d 908 (Alaska 1979).

The possibility of rehabilitation must be considered in every case. However, it need not be given the highest priority as a sentencing goal in all cases. The Alaska Constitution places equal emphasis upon protection of the public. Nelson v. State, 619 P.2d 480 (Alaska Ct. App. 1980).

Need for rehabilitation, particularly where drug addicts are concerned. —

See Parks v. State, 571 P.2d 1003 (Alaska 1977).

Child support enforcement measures not cruel and unusual punishment. —

Father’s claim of cruel and unusual punishment lacked merit, because child support was not bail, a fine, or punishment, and this section only applies to criminal matters. Paxton v. Gavlak, 100 P.3d 7 (Alaska 2004).

Prison inmate’s right of access to rehabilitation programs. —

Inmates incarcerated in Alaska have a right of access to rehabilitation programs under this section. Smith v. State, Dep't of Revenue, Child Support Enforcement Div., 790 P.2d 1352 (Alaska 1990).

Prison inmate’s right of access to rehabilitation programs not violated. —

Compelled use of an inmate’s prison work earnings for child support does not violate his constitutional right of access to rehabilitation programs. Smith v. State, Dep't of Revenue, Child Support Enforcement Div., 790 P.2d 1352 (Alaska 1990).

Where an Alaska prisoner challenged his transfer to Arizona on the grounds that it violated his right to rehabilitation under this section by denying him visitation with his family and alcohol treatment, the issue became moot when the Court of Appeals resentenced him and he was returned to custody in Alaska. Clark v. Alaska, 156 P.3d 384 (Alaska 2007).

State is not obligated to pay housing costs for individuals who have been arrested but not yet arraigned, nor does this provision purport to define the precise scope of the department of corrections’ responsibility for arrested persons who have not yet been committed to state custody. City of Kotzebue v. State, 166 P.3d 37 (Alaska 2007).

Removal from job as prison librarian. —

There was no violation of prisoner’s right to rehabilitation where he was properly removed from his job as a prison librarian and from the “honor wing,” and in these circumstances he did not have an enforceable constitutional interest in continued employment as a prison librarian. Hays v. State, 830 P.2d 783 (Alaska 1992).

Affirmation of sentences disregarding rehabilitation as alternative. —

In light of the importance of rehabilitation in the sentencing process, the court will affirm sentences which disregard rehabilitation as an alternative only where sufficiently articulated reasons are given for that decision or where these reasons appear clear on the face of the sentencing proceedings. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

Court need not recite goals. —

With reference to a sentence appeal, a trial judge need only demonstrate consideration of sentencing goals stated in State v. Chaney , 477 P.2d 441 (1970). The trial court need not recite the goals of sentencing as long as it is clear that it has considered those goals. Evans v. State, 574 P.2d 24 (Alaska 1978).

The use of retribution as a goal of sentencing is inconsistent with the mandate of this section that “Penal administration shall be based on the principle of reformation and upon the need for protecting the public,” and was not adopted as one of the four goals in State v. Chaney, 477 P.2d 441 (Alaska 1970). Smothers v. State, 579 P.2d 1062 (Alaska 1978).

The fourth Chaney criterion ( State v. Chaney , 477 P.2d 441 (Alaska 1970)), the reaffirmation of societal norms, is not a disguise for retribution. Smothers v. State, 579 P.2d 1062 (Alaska 1978).

The goal of community condemnation is distinct from retribution. Kelly v. State, 622 P.2d 432 (Alaska 1981). See also Smothers v. State, 579 P.2d 1062 (Alaska 1978).

Nature of offense is relevant factor in sentencing. —

Throughout the supreme court’s review of sentences, the degree of physical or psychological violence involved in the offense has been an important factor. Kelly v. State, 622 P.2d 432 (Alaska 1981).

In attempting to eliminate consideration of the nature of the offense from its consideration of relevant factors at sentencing, the superior court was clearly mistaken and the sentences in the case had to be reversed. Kelly v. State, 622 P.2d 432 (Alaska 1981).

The fact that a criminal should be rehabilitated, if possible, does not mean that he should escape punishment for his misdeeds. The very opposite may be true. Penalties must be imposed in most instances in order to make rehabilitation effective, as well as to protect the public and deter others from engaging in criminal conduct. State v. Lancaster, 550 P.2d 1257 (Alaska 1976); Webb v. State, 580 P.2d 295 (Alaska 1978).

A Department of Correction’s classification hearing on the transfer of a prisoner to an out-of-state prison involved the prisoner’s fundamental constitutional right to rehabilitation and was an adjudicative proceeding producing a record adequate for review. Brandon v. State, Dep't of Cors., 938 P.2d 1029 (Alaska 1997).

Belief that defendant committed perjury at trial. —

A sentencing judge may take into account his belief that the defendant committed perjury at his trial, but the judge may do so only to the extent that the alleged perjury is used by him as indicia to determine the defendant’s potential for rehabilitation; thus it is improper to enhance the sentence as punishment for the alleged perjury. Pyrdol v. State, 617 P.2d 513 (Alaska 1980).

Failure to give adequate consideration to reformation of youthful, first-time offender. See Wharton v. State, 590 P.2d 427 (Alaska 1979).

Constitutional mandate implemented by AS 12.55.120 . —

The primary goal of the sentence review statute, AS 12.55.120 was to implement Alaska’s constitutional mandate that “Penal administration shall be based on the principle of reformation and upon the need for protecting the public.” Perrin v. State, 543 P.2d 413 (Alaska 1975).

Former mandate for rehabilitation programs, etc. —

Former AS 33.30.020 (repealed), requiring the commissioner of health and social services to establish programs for the treatment, care, rehabilitation, and reformation of prisoners, in discharge of the commissioner’s duties to administer all matters affecting prisoners once the court has pronounced sentence, implemented this section concerning penal administration. Abraham v. State, 585 P.2d 526 (Alaska 1978).

Section to be considered with Alaska Const., art. I, § 11. —

The excessive bail provision in this section insures the fixing of a reasonable bail and is to be considered in conjunction with the right to bail provision of § 11 of this article. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Monetary component of bail to be reassessed. —

Given the unusual dual coverage of defendant by electronic monitoring and a third party custodian if released on bail, it was not clear what purpose setting the bail above his ability to pay served; trial court was to reassess the monetary component once it approved a third-party custodian, and if the court continued to believe that the monetary bail should be set outside defendant's ability to pay, particularized findings as to why were required. Redfox v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2021) (memorandum decision).

Excessive bail may not be imposed under both the United States and Alaska constitutions. Doe v. State, 487 P.2d 47 (Alaska 1971).

Bail amount constituted abuse of discretion. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

State properly conceded that the trial court erred in refusing to hear testimony regarding the ability of defendant's family to post a $25,000 cash-only performance bond and in failing to provide case-specific reasons for why that amount of monetary bail was necessary given the factors set fort in AS § 12.30.011(c), the prohibitions on excessive bail in U.S. Const. amend. VIII and Alaska Const. art. I, § 12, and the case law requirements for a particularized statement and explanation. Sergie v. State, — P.3d — (Alaska Ct. App. July 30, 2021).

“Excessive bail.” —

Excessive bail has been held to be that which goes beyond the amount reasonably necessary to assure the defendant’s presence at trial. Doe v. State, 487 P.2d 47 (Alaska 1971).

Post-conviction bail. —

Criminal defendants are not guaranteed the right to post-conviction bail by either the Eighth Amendment to the Unites States Constitution or this section. Hosier v. State, 976 P.2d 869 (Alaska Ct. App. 1999).

Test as to cruel and unusual punishment. —

The test is whether the punishment is inhuman and barbarous, or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice. Lanier v. State, 486 P.2d 981 (Alaska 1971).

Only those punishments which are cruel and unusual in the sense that they are inhuman and barbarous, or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice may be stricken as violating the due process clauses of the state and federal constitutions. Such punishments would also be void under this section which declares that cruel and unusual punishments shall not be inflicted. Thompson v. State, 496 P.2d 651 (Alaska 1972); Stock v. State, 526 P.2d 3 (Alaska 1974); Thomas v. State, 566 P.2d 630 (Alaska 1977).

A sentence may violate the constitutional clause prohibiting cruel and ususual punishment due to its excessiveness only if it is “completely arbitrary and shocking to the sense of justice.” Davis v. State, 566 P.2d 640 (Alaska 1977).

In a second-degree sexual assault case, defendant’s constitutional right to be free from cruel and unusual punishment was not violated by the imposition of a 99-year presumptive sentence because defendant sexually assaulted a woman while she was incapacitated and unaware of what was happening, and he later exhibited no remorse for his conduct. He had prior convictions for similar offenses, he did not reform his behavior, he did not address his alcohol problem, and he had numerous misdemeanor offenses. Kobuk v. State, — P.3d — (Alaska Ct. App. Apr. 8, 2015) (memorandum decision).

Incarceration of children. —

Regardless of benevolent-sounding labels, incarceration, when applied to children, is a taking of liberty under the 14th amendment. RLR v. State, 487 P.2d 27 (Alaska 1971).

Penalties need not be proportioned to offense. —

The Alaska Constitution contains no restriction that penalties shall be proportioned to the nature of the offense. Stock v. State, 526 P.2d 3 (Alaska 1974).

Legislative judgment expressed by maximum sentence. —

In sentencing, it should be remembered that the maximum sentence for a particular offense expresses a legislative judgment about how the worst offender within a class designated by the legislature should be treated. Waters v. State, 483 P.2d 199 (Alaska 1971).

Some range of sentencing alternatives must be provided to allow adjustment for the special facts of each crime, as well as the record and character of each convicted individual. Nicholas v. State, 477 P.2d 447 (Alaska 1970).

List of factors contained in AS 12.55.005 governs the sentencing court’s authority under AS 12.55.115 to restrict discretionary parole as part of a sentence of imprisonment; the statutory language is clear and uncontradicted by any legislative history, a sentencing court must consider all the enumerated criteria in AS 12.55.005 when restricting discretionary parole as a part of a sentence, not just public protection and the defendant’s reformation. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Reasonable disparity is necessary. —

While unjustifiable disparities in the sentencing of criminal offenders may be a serious problem to many observers of the criminal process, the key word is “unjustifiable,” for reasonable disparity is necessary to achieve the purposes of sentencing. Nicholas v. State, 477 P.2d 447 (Alaska 1970); Perrin v. State, 543 P.2d 413 (Alaska 1975).

Making a reasoned sentence decision. —

To make a reasoned sentence decision, the sentencing judge must determine the priority and relationship of the objectives of penal administration in any particular case. Nicholas v. State, 477 P.2d 447 (Alaska 1970); Newsom v. State, 533 P.2d 904 (Alaska 1975); Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

In applying the principles and the criteria established in State v. Chaney , 477 P.2d 441 (1970), the sentencing judge has the principal duty of determining the priority and inter-relationship of the sentencing goals. Hansen v. State, 582 P.2d 1041 (Alaska 1978).

In imposing a sentence a judge should not place too much emphasis on punishment of the offender and not enough attention to his rehabilitation potential. Newsom v. State, 533 P.2d 904 (Alaska 1975).

Determination of an appropriate sentence involves the judicious balancing of many and ofttimes competing factors of which primacy cannot be ascribed to any particular factor. Brandon v. State, 581 P.2d 1116 (Alaska 1978).

The judge’s balancing of the factors of rehabilitation, isolation, and deterrence must also include an awareness that, in sentencing, he is reflecting community beliefs that certain norms are viable and will be upheld by the courts. Smothers v. State, 579 P.2d 1062 (Alaska 1978).

Each sentence must be decided on the facts of the individual case and appellate review is not intended to enforce uniformity. Ames v. State, 533 P.2d 246 (Alaska), modified, 537 P.2d 1116 (Alaska 1975).

Ordinarily a sentence within statutory limits should not be disturbed. Faulkner v. State, 445 P.2d 815 (Alaska 1968).

Unless such sentence is disproportionate to offense. —

It is conceivable that in extraordinary circumstances a sentence, although within the limits prescribed by law, may be so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice, and thus would amount to an unconstitutional cruel and unusual punishment. Faulkner v. State, 445 P.2d 815 (Alaska 1968).

Punishment for crime should be graduated in proportion to offense. Faulkner v. State, 445 P.2d 815 (Alaska 1968).

The bare fact that a sentence is within the maximum prescribed by the legislature does not prevent it from violating the constitutional ban against cruel and unusual punishment. Faulkner v. State, 445 P.2d 815 (Alaska 1968).

Sentence review must be carried out with a view to effectuate the purposes of the Alaska Constitution and the sentence review statute, AS 12.55.120 . Cleary v. State, 548 P.2d 952 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977).

The supreme court’s role in reviewing sentences imposed by the trial courts is to insure that sentences effectuate the purposes of the Alaska Constitution. Ripley v. State, 590 P.2d 48 (Alaska 1979).

Sentence review insures that sentencing courts pay due regard to the goals of reformation and protection of the public. Wharton v. State, 590 P.2d 427 (Alaska 1979).

The basic objectives of review have been noted: (1) To correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest; (2) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence; (3) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and (4) to promote the development and application of criteria for sentencing which are both rational and just. Thurlkill v. State, 551 P.2d 541 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977).

Maximum sentence for “worst offenders” only. —

A maximum prison sentence should not be imposed unless the defendant being sentenced fits into a class which the supreme court has characterized as “the worst type of offender.” Bordewick v. State, 569 P.2d 184 (Alaska 1977).

Confinement of juveniles without treatment. —

Rehabilitation rather than punishment is the express purpose of juvenile jurisdiction. Mere confinement without treatment does not contribute to the goal of rehabilitation; such confinement constitutes cruel and unusual punishment. Rust v. State, 582 P.2d 134 (Alaska 1978).

Action for abusive treatment by corrections officers. —

AS 09.50.250 provides the State immunity, and barred an inmate’s state constitutional claims for excessive force and failure to train prison employees because the claims arose out of an alleged assault and battery. State v. Heisey, 271 P.3d 1082 (Alaska 2012).

The test of a prisoner’s right to receive treatment for health problems outlined in Bowring v. Godwin , 551 F.2d 44 (4th Cir. 1977), is an appropriate one; thus, the court adopted its criteria in determining questions as to the right of a prisoner to receive psychological or psychiatric care under the provisions of former AS 33.30.020 and former AS 33.30.050 (now repealed), which provided that the commission was to establish prison facilities and to provide medical services. Rust v. State, 582 P.2d 134 (Alaska 1978).

No additional cause of action for damages for lack of proper medical treatment. —

Where the inmate filed a claim against the dentist and nurses for failing to timely treat his dental problems, the superior court did not err by dismissing his claim under this provision. The court would not imply a private cause of action for damages under the Alaska Constitution; medical malpractice and federal constitutional law provide adequate remedies to redress inadequate dental treatment. Hertz v. Beach, 211 P.3d 668 (Alaska 2009).

Pursuant to the provisions of former AS 33.30.020 and former AS 33.30.050 (now repealed), which provided that the commission was to establish prison facilities and to provide medical services, a prisoner in the custody of the Division of Corrections has the right to receive psychological or psychiatric treatment if a physician or other health care provider, exercising ordinary skill and care at the time of observation, concludes with reasonable medical certainty that the prisoner’s symptoms evidence a serious disease or injury, that such disease or injury is curable or may be substantially alleviated, and that the potential for harm to the prisoner by reason of delay or denial of care could be substantial. Rust v. State, 582 P.2d 134 (Alaska 1978).

Alaska’s legislature has determined that a prisoner has the right to receive necessary medical services, including psychiatric care, while confined. Rust v. State, 582 P.2d 134 (Alaska 1978).

Reasonable accommodation of medical condition. —

Inmate’s allegations and exhibits showed that prison officials were aware of his complaint that he suffered from paruresis and did nothing to accommodate his condition. Assuming the inmate suffered from paruresis and experienced extreme pain when providing urinalysis samples, the mere fact that medical staff examined the inmate was insufficient to conclusively establish that prison officials were not deliberately indifferent to his condition. Larson v. State, 284 P.3d 1 (Alaska 2012).

Constitutional right to rehabilitative treatment with respect to alcohol problem. —

See Abraham v. State, 585 P.2d 526 (Alaska 1978).

Where a person is imprisoned for only one day before arraignment and then given a suspended sentence, he is not denied a constitutional right to alcohol rehabilitative treatment; twenty-three hours is insufficient time to institute an effective program. Goodlataw v. State, Dep't of Health & Soc. Servs., 698 P.2d 1190 (Alaska), cert. denied, 474 U.S. 996, 106 S. Ct. 411, 88 L. Ed. 2d 361 (U.S. 1985).

Consecutive sentences did not constitute cruel and unusual punishment forbidden by the state and federal constitutions. Davis v. State, 566 P.2d 640 (Alaska 1977).

A sentence constitutes cruel and unusual punishment only if it is completely arbitrary and shocking to the sense of justice. Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).

Five year maximum sentence except for certain serious crimes. —

The supreme court has adopted the American Bar Association’s view that except for cases involving particularly serious offenses, dangerous offenders and professional criminals, maximum prison terms ought not to exceed five years. Huff v. State, 568 P.2d 1014 (Alaska 1977).

Except for cases involving particularly serious offenses, dangerous offenders and professional criminals, maximum prison terms ought not to exceed five years. Bordewick v. State, 569 P.2d 184 (Alaska 1977); Black v. State, 569 P.2d 804 (Alaska 1977); Hansen v. State, 582 P.2d 1041 (Alaska 1978).

Scope of review on sentencing appeal. —

See Faulkner v. State, 445 P.2d 815 (Alaska 1968); Newsom v. State, 533 P.2d 904 (Alaska 1975); Cleary v. State, 548 P.2d 952 (Alaska 1976); Layland v. State, 549 P.2d 1182 (Alaska 1976); Thurlkill v. State, 551 P.2d 541 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Marks v. State, 557 P.2d 1136 (Alaska 1976); Benefield v. State, 559 P.2d 91 (Alaska 1977); Bragg v. State, 560 P.2d 391 (Alaska 1977); Bordewick v. State, 569 P.2d 184 (Alaska 1977); Fox v. State, 569 P.2d 1335 (Alaska 1977); Collins v. State, 574 P.2d 1278 (Alaska 1978); Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979); Hansen v. State, 582 P.2d 1041 (Alaska 1978); Ripley v. State, 590 P.2d 48 (Alaska 1979); Kelly v. State, 622 P.2d 432 (Alaska 1981).

A period of incarceration was called for in arriving at an appropriate sentence in light of the goals of protection of the public, deterrence of the accused and others from engaging in similar criminal conduct, and reaffirmation of societal norms. Waters v. State, 483 P.2d 199 (Alaska 1971).

The extent of an accused’s ability to furnish bail is a factor which may be duly weighed. Reeves v. State, 411 P.2d 212 (Alaska 1966).

But is not the measure of the court’s power of discretion in admitting to bail. Reeves v. State, 411 P.2d 212 (Alaska 1966).

Third-party custodian condition necessary. —

Given defendant's prior violation of the court order not to contact his girlfriend, her significant fear of him, and the circumstances of his criminal history, including a prior conviction for assaulting his girlfriend, the trial court reasonably found that the in-person supervision and accountability that a third-party custodian provided was necessary in this case, and no abuse of discretion was found and his bail was not excessive. Redfox v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2021) (memorandum decision).

Rights of indigent. —

An indigent defendant does not have an absolute right to be released on his own recognizance prior to trial. Reeves v. State, 411 P.2d 212 (Alaska 1966).

The presumptive sentencing provisions, AS 12.55.125 12.55.175 , do not conflict with this section because the legislature has the authority to reasonably restrict judicial discretion in order to accomplish the goal of eliminating unjustified sentencing disparity. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Application of AS 12.55.155(g) is constitutional. —

In preventing the court from considering as a mitigating factor defendant’s problems with alcohol abuse as they related to his rehabilitation, AS 12.55.155(g) does not violate Alaska Const., art. I, § 12, or infringe upon the separation of powers. Koteles v. State, 660 P.2d 1199 (Alaska Ct. App. 1983).

The penalty provisions of AS 46.03.760 and 46.03.790 do not constitute cruel and unusual punishment nor are they so completely arbitrary and shocking to the sense of justice that they must be stricken. Stock v. State, 526 P.2d 3 (Alaska 1974).

Parole condition to abstain from alcohol reasonable. —

Imposition of a parole condition requiring an avowed alcoholic to abstain from alcohol was held not unreasonable and was not contrary to the intent of this section. Martin v. State, 517 P.2d 1399 (Alaska 1974).

Punishment under former AS 11.05.070 not cruel and unusual. —

The supreme court did not find the punishment provided under AS 11.05.070 [now in altered form in AS 33.30.241 ], specifying the effect of a judgment of imprisonment in the penitentiary, to be so severe as to constitute “cruel and unusual punishment.” Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Refusal to take breathalyzer test. —

AS 28.35.032(f) , making refusal to take a chemical test of breath authorized by AS 28.35.031 a class A misdemeanor, does not violate substantive due process or the prohibition against cruel and unusual punishment since it is reasonably related to a legitimate government purpose and the penalty does not subject a defendant to punishment out of proportion to the conduct in which he is engaged. Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983).

Forfeiture of automobile. —

The forfeiture of defendant’s vehicle under a municipal ordinance on driving while intoxicated was not so grossly disproportionate to the crime as to require a special hearing on proportionality. Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997).

Forfeiture of commercial fishing equipment. —

Forfeiture did not violate the excessive fines clause of the Eighth Amendment or plainly violate the right to rehabilitation in the Alaska Constitution because defendant failed to make a record as to the value of his interests in a skiff, and the net he used while committing misdemeanor commercial fishing offenses; the court of appeals, therefore, had no meaningful way of assessing the value of the forfeiture of interests in the skiff and net. Demmert v. State, — P.3d — (Alaska Ct. App. Aug. 25, 2021) (memorandum decision).

Forfeiture did not violate the excessive fines clause of the Eighth Amendment or plainly violate the right to rehabilitation in the Alaska Constitution because although defendant could no longer have ownership of a fishing vessel, skiff, and the net he used while committing misdemeanor commercial fishing offense, nothing in the trial court's sentence appeared to preclude him from engaging in his livelihood of commercial fishing on another boat. Demmert v. State, — P.3d — (Alaska Ct. App. Aug. 25, 2021) (memorandum decision).

Incarceration of a person found guilty but mentally ill does not violate the due process or cruel and unusual punishment clauses of the Alaska Constitution. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Imprisonment outside Eskimo’s native area. —

Although defendant had lived in a traditional native Eskimo style, spoke virtually no English, ate a native diet which would not be available in prison facilities, and had virtually no experience outside of the traditional life of natives in southwestern Alaska, imprisonment in a place outside of his native area would not subject him to cruel and unusual punishment in violation of this section. Abraham v. State, 585 P.2d 526 (Alaska 1978).

Lifetime imprisonment constitutional. —

Alaska Constitution does not prohibit sentences which constitute, in effect, lifetime of imprisonment without hope of parole. Nukapigak v. State, 663 P.2d 943 (Alaska 1983).

Violent crimes involving physical injury to innocent people are to be regarded as the most serious offenses and are not to be treated lightly. Ames v. State, 533 P.2d 246 (Alaska), modified, 537 P.2d 1116 (Alaska 1975).

Twenty-year minimum sentence for first-degree murder did not constitute cruel and unusual punishment in violation of § 12, art. I, of the state constitution, and U.S. Const., amend. 8, nor did it deprive defendant of substantive due process and the equal protection of the laws in violation of U.S. Const., amend. 14, nor of the comparable provisions in the Alaska Constitution. Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983), cert. denied, 465 U.S. 1007, 104 S. Ct. 1001, 79 L. Ed. 2d 234 (U.S. 1984).

Forcible rape. —

Although the perpetrator of such a crime as forcible rape may not be beyond rehabilitation, the crime itself deserves community condemnation; in addition to serving rehabilitative purposes the sentence must reflect such condemnation as well as act as a deterrent to the offender and to others. Newsom v. State, 533 P.2d 904 (Alaska 1975).

The supreme court in the past affirmed sentences ranging from eight to 20 years in forcible rape cases. Bordewick v. State, 569 P.2d 184 (Alaska 1977).

An extremely moderate sentence for forcible rape does not reflect a real understanding of the gravity of the offense because it falls short of effectuating the goal of community condemnation, or the reaffirmation of societal norms, for the purpose of maintaining the respect for the norms themselves. State v. Lancaster, 550 P.2d 1257 (Alaska 1976).

Supreme court disapproved as too lenient a sentence of seven years imprisonment on each of two counts of rape of a 15-year old girl, with the sentences to run concurrently, where the sentencing judge suspended five years of each of the seven-year sentences, leaving defendant a total of two years imprisonment to serve, and where, in addition, the judge made reference to the possibility of parole after defendant had served one-third of the two-year period of confinement. State v. Lancaster, 550 P.2d 1257 (Alaska 1976).

Effort to coerce defendant into rehabilitative program. —

Where the trial court imposed the maximum sentence not as a result of an application of the State v. Chaney , 477 P.2d 441 (Alaska 1970), criteria, but as an effort to coerce defendant into a rehabilitative program, that was an improper use of sentencing. Szeratics v. State, 572 P.2d 63 (Alaska 1977).

Designation of facility or program for rehabilitation. —

Recognition of the right of a prisoner to rehabilitation does not imply that a court at the time sentence is pronounced has the authority to designate a particular facility for incarceration of the defendant or a particular program for his rehabilitation. It is only after a demonstrated failure to provide an appropriate rehabilitation program that judicial intervention is proper. LaBarbera v. State, 598 P.2d 947 (Alaska 1979).

Twenty-five year sentence as habitual criminal upheld. —

Where an agreement was reached including both a plea and a sentence bargain under which defendant would drop his appeal of an escape conviction, would not appeal a habitual criminal conviction and would agree to a 25-year sentence as a habitual criminal and the state, in turn, would dismiss a burglary indictment, agree to a concurrent escape sentence, and not retry defendant for burglary after the supreme court reversal, and the trial court accepted the bargain and imposed sentence accordingly, the 25-year sentence did not amount to cruel and unusual punishment. Lemon v. State, 654 P.2d 277 (Alaska Ct. App. 1982).

Eight year sentences for heroin sales not reasonable. —

Where the defendant suffered from an addiction to heroin and arranged sales solely to satisfy his craving for the drug, the sentencing judge was clearly mistaken in imposing two concurrent eight-year sentences for a total period of imprisonment, absent parole, of eight years. Huff v. State, 568 P.2d 1014 (Alaska 1977).

Where defendant suffered from an addiction to heroin and arranged sales solely to satisfy his craving for the drug, a sentence of imprisonment for a period of time not to exceed four years would have more adequately effectuated the goals of penal administration, which the supreme court considers proper and necessary in imposing a sentence for this type of criminal behavior. Huff v. State, 568 P.2d 1014 (Alaska 1977).

Fifteen year sentence for passing bad checks. —

Where the particular offenses involved passing two bad checks totalling about $500.00, a sentence of 15 years is excessive. Black v. State, 569 P.2d 804 (Alaska 1977).

99-year sentence for sexual abuse of minor. —

When defendant was convicted of first-degree sexual abuse of a minor, and he had two prior felony convictions for attempted second-degree sexual abuse of a minor, defendant’s constitutional attack on the 99-year sentence was rejected because increased penalties for repeat felony offenders are presumptively constitutional. Sikeo v. State, 258 P.3d 906 (Alaska Ct. App. 2011).

Imprisonment for public drunkenness. —

Defendant was not entitled to be relieved of accountability for the offense of public drunkenness because of his habits and drinking pattern in the use of alcoholic beverages. To impose a sentence of imprisonment upon conviction of that offense is not the imposition of cruel and unusual punishment in violation of the federal and state constitutions. Vick v. State, 453 P.2d 342 (Alaska 1969).

Imposition of consecutive sentences for narcotics convictions did not constitute cruel and unusual punishment. —

See Thomas v. State, 566 P.2d 630 (Alaska 1977).

Visitation privileges are a component of constitutional right to rehabilitation guaranteed by Alaska Const. art. I, § 12, but there is nothing in art. I, § 12 or the constitutional minutes that implies any intention to constitutionalize extended contact visits for maximum security prisoners or to preclude prisons from putting reasonable limits on contact visitation of maximum security prisoners; the degree of contact permitted between visitors and maximum security prisoners lies within the sound discretion of prison administrators, and a temporary suspension of contact visitation is a permissible limitation on visitation. Larson v. Cooper, 90 P.3d 125 (Alaska 2004).

Denial of visitation. —

Inmate’s claim that his right to rehabilitation under Alaska. Const. art. I, § 12 was violated due to a denial of visitation was improperly dismissed based on the rationale that the failed visitation was the result of a mistake, rather than intentional misconduct; the inmate never alleged or conceded that an assistant warden made a mistake. Adkins v. Stansel, 204 P.3d 1031 (Alaska 2009).

Denial of conjugal visitation does not constitute cruel and unusual punishment. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Notions of privacy of the marital bed are inconsistent with the compelling state interest in incarceration of offenders. One cannot be both in prison and in the sanctum of one’s bedroom. The state is under no constitutional obligation to create such a sanctum within the prison walls. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Inmates not entitled to minimum wage. —

Neither the rehabilitation directive of the Alaska Constitution nor its due process clause require the holding that inmates are entitled to a minimum wage. McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

Imposition of criminal punishment for possession of marijuana not cruel and unusual. —

See Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Problems when one committing offense while under 18 years is ordered incarcerated at later age. —

See Davenport v. McGinnis, 522 P.2d 1140 (Alaska 1974).

Lifetime revocation of driver’s license. —

Lifetime revocation of driver’s license was not unconstitutionally excessive and so disproportionate to DWI offense as to be cruel and unusual punishment where defendant had a 20-year history of repeated offenses involving the operation of motor vehicles while intoxicated. Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

Presumptive term not arbitrarily disproportionate. —

Because defendant had two or more prior felony convictions, the 35 to 50 year presumptive term was not arbitrarily disproportionate for his attempted first-degree sexual assault and was not excessive under Alaska Const. art. I, § 12. Moore v. State, 262 P.3d 217 (Alaska Ct. App. 2011).

Forty-two year sentence upheld. —

In a child sexual assault case, a 42-year sentence imposed was not clearly mistaken, and it was not unconstitutional since the trial court analyzed all of the relevant criteria, including defendant's rehabilitation potential, and concluded that he had not shown any reason for the court to depart from the presumptive ranges otherwise applicable to this case. Kowalski v. State, — P.3d — (Alaska Ct. App. Mar. 1, 2017) (memorandum decision).

Fine found not excessive. —

Owners of property cited as storing “junk” outside at the property in violation of zoning requirements had the opportunity to challenge the constitutionality of fines imposed on direct appeal; having failed to timely appeal the judgment, the owners could not claim that the fines they were faced with were unconstitutionally excessive under this provision. Szabo v. Municipality of Anchorage, 320 P.3d 809 (Alaska 2014).

Sentence found not excessive. —

Where defendant was convicted on five counts of selling heroin and one count of possessing heroin and sentenced to 10 years on each count, with one sentence to run consecutively to the other five concurrent sentences, for a total of 20 years imprisonment, defendant was to be ineligible for parole until he had served five years, and all the sentences were made consecutive to two sentences he had not yet finished serving, the imposition of consecutive sentences did not violate this section or Alaska Const., art. I, § 9 and the minimum of five years before parole did not violate former AS 33.15.230(a). Davis v. State, 566 P.2d 640 (Alaska 1977).

Where at the time of sentencing for the crime of embezzlement by an employee of property worth more than $100, defendant was 22 years old, had been working several years, and had spent two semesters in college, and other than minor traffic violations he had no previous criminal record, the trial court was not clearly mistaken in failing to order a suspended imposition of sentence, instead of actually imposing a sentence of three years and four months, with the entire period suspended upon the condition that he enter a 12-month period of public service. Mullins v. State, 573 P.2d 860 (Alaska 1978).

Given defendant’s extensive record and past failures to abide by the terms and conditions of his parole and probation, the supreme court could not say that a sentence of seven years imprisonment on each of four counts of forgery and of five years imprisonment on one count of attempted forgery, the sentences to run concurrently, was excessive. Morris v. State, 592 P.2d 1244 (Alaska 1979).

Defendant’s sentence of six years of imprisonment for escape in violation of AS 11.56.310(a) , (n) was not excessive under Alaska Const. art. I, § 12; except for the finding that defendant was not guilty by reason of insanity, defendant’s prior criminal conduct would have qualified defendant as a third-felony offender facing a presumptive sentence of six years, pursuant to AS 12.55.125(d) . Alto v. State, 64 P.3d 141 (Alaska Ct. App. 2003).

Combination of the automatic waiver statute and the adult sentencing statute was consistent with evolving standards of decency and this scheme bore a fair and substantial relationship to the legitimate purposes of punishment; the sentencing judge gave the minor defendant’s rehabilitative prospects careful scrutiny and appropriate weight and the resulting sentence for first-degree murder was not clearly mistaken. Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011).

Revocation of probation. —

Court of Appeals of the State of Alaska did not apply the proper two-stage probation revocation hearing process because the court should have made a finding of fact regarding whether the probationer violated a condition of probation, and, if the probationer did violate a condition of probation, the court then should have determined the proper disposition given the violation. The probationer's mental state at the time of the violation as well as at the time of the revocation hearing and a good cause determination were part of the second stage. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

When a probation officer alleged that a probationer was in possession of certain prohibited items after the probationer was found in a truck with those items, because the appropriate mens rea requirement for possession of items prohibited by a condition of probation was a negligence standard, not an actual knowledge standard, the State of Alaska had to prove that the probationer knew or should have known that he was in possession of items prohibited by a condition of probation. The superior court on remand was to make this determination. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Applied in

Morgan v. State, 582 P.2d 1017 (Alaska 1978); Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986).

Quoted in

Egelak v. State, 438 P.2d 712 (Alaska 1968); Smith v. State, 711 P.2d 561 (Alaska Ct. App. 1985); State v. Carlin, 249 P.3d 752 (Alaska 2011).

Stated in

Marrone v. State, 458 P.2d 736 (Alaska 1969).

Cited in

Bear v. State, 439 P.2d 432 (Alaska 1968); Christian v. State, 513 P.2d 664 (Alaska 1973); Fairbanks Correctional Ctr. Inmates v. Williamson, 600 P.2d 743 (Alaska 1979); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983); Bolhouse v. State, 687 P.2d 1166 (Alaska Ct. App. 1984); Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987); Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005); C.J. v. Dep't of Corr., 151 P.3d 373 (Alaska 2006); State v. Ranstead, 421 P.3d 15 (Alaska 2018); Hamburg v. State, 434 P.3d 1165 (Alaska Ct. App. 2018); Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

Collateral references. —

8A Am.Jur.2d, Bail and Recognizance, § 1 et seq.; 21 Am.Jur.2d, Criminal Law, §§ 504 to 506.

8 C.J.S., Bail, §§ 11 to 25, 65 to 72.

Insanity of accused as affecting right to bail in criminal case. 11 ALR3d 1385.

Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment. 33 ALR3d 335.

Prison conditions as amounting to cruel and unusual punishment. 51 ALR3d 111.

Right of bail in proceedings in juvenile courts. 53 ALR3d 848.

Validity of statutes authorizing asexualization or sterilization of criminals or mental defectives. 53 ALR3d 960.

Capital punishment: effect of abolition of capital punishment on procedural rules governing crimes punishable by death — post-Furman decisions. 71 ALR3d 453.

Pretrial preventive detention by state court. 75 ALR3d 956.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

State statutes making default on bail a separate criminal offense. 63 ALR4th 1064.

Propriety of carrying out death sentences against mentally ill individuals. 111 ALR5th 491.

Application of constitutional rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that execution of mentally retarded persons constitutes “cruel and unusual punishment” in violation of Eighth Amendment. 122 ALR5th 145.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment or state constitutions — State cases. 124 ALR5th 509.

Prison inmate’s Eighth Amendment rights to treatment for sleep disorders, 68 ALR6th 389.

Imposition of enhanced sentence under recidivist statute as cruel and unusual punishment. 27 ALR Fed. 110.

Section 13. Habeas Corpus.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or actual or imminent invasion, the public safety requires it.

Cross references. —

For statutory provisions related to habeas corpus, see AS 12.75.

Notes to Decisions

Common law writ of habeas corpus. —

Although this section may preclude a state limitation on an applicant’s quest for relief that would have been available in a common law writ of habeas corpus, nothing in defendant’s petition for post-conviction relief was within the scope of that writ. Flanigan v. State, 3 P.3d 372 (Alaska Ct. App. 2000).

Personal jurisdiction over defendant incarcerated in another state. —

The fact that an Alaska prisoner is confined outside the territorial limits of Alaska does not defeat the authority of Alaska courts to entertain the prisoner’s habeas corpus litigation if the prisoner’s immediate custodian is an agent of the Alaska Department of Corrections, with Alaska correctional officials having the authority to order the prisoner returned to Alaska. Harvey v. Antrim, 160 P.3d 673 (Alaska Ct. App. 2007).

Quoted in

Perry v. State, 429 P.2d 249 (Alaska 1967).

Cited in

Hertz v. State, 8 P.3d 1144 (Alaska Ct. App. 2000); Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000).

Collateral references. —

39 Am.Jur.2d, Habeas Corpus and Postconviction Remedies, §§ 1 to 10.

39 C.J.S., Habeas Corpus, §§ 1 et seq..

Anticipatory relief in federal courts against state criminal prosecutions growing out of civil rights activities. 8 ALR3d 301.

When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus. 26 ALR4th 455.

Review by federal civil courts of court-martial convictions. 95 ALR Fed. 472.

Section 14. Searches and Seizures.

The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Cross references. —

As to preliminary hearings, see Alaska Const., art. I, § 11; for statutory provision as to search and seizure, see AS 12.35.

Notes to Decisions

Analysis

I.General Consideration
A.In General

Power to search recognized by law. —

English and American law has always recognized the power to search the person of the accused, when legally arrested, to discover and seize the fruits or evidences of the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Security from excessive force. —

Police officer’s tasering of an 11-year-old girl who was driving an ATV dangerously through city streets was a possible violation of the child’s right to be secure in her person. Russell ex rel. J.N. v. Virg-In, 258 P.3d 795 (Alaska 2011).

No excessive force found. —

Officer who shot fleeing person after an extended vehicle pursuit, and search of a wooded area on foot, did not use excessive force. The fleeing person, the subject of an involuntary commitment order, was armed and had fired shots earlier in the incident. Maness v. Daily, 307 P.3d 894 (Alaska 2013).

Right to privacy protected. —

The right to privacy is protected by this section and the 14th amendment to the federal constitution.Bargas v. State, 489 P.2d 130 (Alaska 1971).

Based on Alaska Const. art. I, §§ 14, 22, and the highly personal information that can be revealed by a garbage search, a person who sets out garbage for routine collection on or adjacent to a public street or a public area has some objectively reasonable expectation of privacy in that garbage. Beltz v. State, 221 P.3d 328 (Alaska 2009).

Exercise of that right is not a badge of guilt. The constitutional protection against unreasonable searches and seizures would be meaningless if the exercise of that right were allowed to become a badge of guilt. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Accused’s assertion of his constitutional right not to have his privacy invaded without just cause cannot be used against him to help establish guilt of the crime for which he was indicted. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Right gives way to need to investigate crime. —

Where there is probable cause to arrest for a particular crime of a type which can be evidenced by items concealed on the person, there is little danger of a pretext arrest. In such circumstances, the individual’s rights of privacy must give way to the public need to investigate the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Staleness. —

Defendant's claim that the information used to support a search warrant was too stale was rejected given the serial nature of the sexual assault charges. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Purpose of section. —

The primary purpose of the constitutional guarantees furnished by this section is the protection of “personal privacy and dignity against unwarranted intrusion by the state.” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The primary purpose of this constitutional provision, together with the explicit guarantee of the right to privacy in Alas. Const., art. I, § 22, is the protection of personal privacy and dignity against unwarranted intrusion by the state or other governmental officials. Schultz v. State, 593 P.2d 640 (Alaska 1979).

When section operative. —

This section is only operative when there has in fact been either a “search” or a “seizure.” McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

This section is the state counterpart of the 4th amendment. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Both the 4th amendment to the federal constitution and its counterpart found in this section furnish guarantees against unreasonable searches and seizures. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Section and 4th amendment compared. —

This section is identical to the 4th amendment except for the addition of the term “and other property” in the catalogue of protected zones. Keller v. State, 543 P.2d 1211 (Alaska 1975).

The privacy protections provided by this section substantively parallel those contained in the 4th amendment to the federal constitution.Weltin v. State, 574 P.2d 816 (Alaska 1978).

This section provides protection similar to that afforded by the 4th amendment. Ferguson v. State, 488 P.2d 1032 (Alaska 1971).

Section contains an even broader guarantee against unreasonable searches and seizures than the 4th amendment. Ellison v. State, 383 P.2d 716 (Alaska 1963); State v. Daniel, 589 P.2d 408 (Alaska 1979).

The Alaska constitutional guarantee against unreasonable searches and seizures is broader than 4th amendment guarantees. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

The supreme court may construe Alaska’s constitutional provisions as affording additional rights. State v. Glass, 583 P.2d 872 (Alaska 1978).

This section contains an even broader guarantee against unreasonable searches and seizures than does the 4th amendment to the Constitution of the United States since the 4th amendment does not contain the phrase “and other property.” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The supreme court may construe the Alaska Constitution to afford broader rights than similar federal provisions. Roman v. State, 570 P.2d 1235 (Alaska 1977).

The Alaska constitutional guarantee against unreasonable searches and seizures is broader in scope than 4th amendment guarantees under the United States Constitution, at least in part because of the more extensive right of privacy guaranteed Alaskan citizens by Alaska Const., art. I, § 22. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Alaska constitution requires greater restrictions on police authority than the restrictions imposed by the Fourth Amendment when motorists are asked to consent to a search of their person, their vehicle, or their belongings during a traffic stop. Brown v. State, 182 P.3d 624 (Alaska Ct. App. 2008).

Provisions for issuance of warrants are same. —

The 4th amendment and this section contain the same provision in regard to the issuance of warrants. Bell v. State, 482 P.2d 854 (Alaska 1971).

Section not to be interpreted more strictly than federal constitution. —

Alaska constitutional prohibition against unreasonable searches and seizures, as to narcotics cases, should not be interpereted more strictly than the federal constitution. Davis v. State, 525 P.2d 541 (Alaska 1974).

Consideration of United States supreme court holdings. —

In construing similar provisions of Alaska’s constitution, the supreme court gives careful consideration to the holdings of the United States supreme court, although it is not bound by them. State v. Glass, 583 P.2d 872 (Alaska 1978).

The Alaska supreme court is not bound by the U.S. supreme court’s interpretations of the 4th amendment in expounding the corresponding section of Alaska Const., art. I, § 14. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Criminal R. 37 implements section. —

Criminal R. 37, providing in part that a search warrant authorized by law shall issue only on affidavit sworn to before a judge or magistrate or any person authorized to take oaths under the law of the state, or sworn testimony taken on the record in court and establishing the grounds for issuing the warrant, implements this section and the 4th amendment to the United States Constitution.Milne v. State, 607 P.2d 360 (Alaska 1980).

The 4th amendment protects people, not places. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Governmental intrusions limited in scope. —

The right to be “secure . . . against unreasonable searches and seizures,” under this section requires that governmental intrusion into the personal privacy of Alaska citizens be limited in scope to that degree necessary under the particular circumstances. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Aerial surveillance using telephoto lens requires warrant. —

When an individual has taken reasonable steps to protect their house and curtilage from ground-level observation, he has a reasonable expectation that law enforcement will not use a telephoto lens or other visual enhancement technology to engage in aerial surveillance of the individual's residential property for the purpose of investigating criminal activity; in such circumstances, the aerial surveillance constitutes a search and requires a warrant unless there is an applicable exception. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Because defendant had taken reasonable measures to protect the privacy of his residential curtilage from ground-level observation, and because the officer used a telephoto lens during his aerial surveillance of defendant's property to obtain an enhanced view of the greenhouse located within his curtilage, the trooper's investigative overflight was a search that required a warrant; as there was no warrant and no exception to the warrant requirement, the superior court should have granted defendant's motion to suppress. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

When person “seized.” —

A person is seized when a reasonable person in his position would not feel free to leave. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

Whenever a reasonable person (one who is innocent of any crime) would believe that his attempt to break off discussion with the officer and leave the scene would result in actual restraint or other physical violence, he is restrained and has been seized as the term is used in the constitution. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Where the police officer asked defendant for identification in the course of general questioning about property and the officer had a right to be where he was and to ask questions about what was going on around him, the judge did not err in concluding that defendant was free to leave during the initial questioning, and defendant was not seized for 4th amendment purposes until the pat-down began. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

No fourth amendment seizure occurred at the point when defendant exited his vehicle and the police officer asked him if he had been drinking, since defendant stopped his vehicle of his own accord and he himself approached the officer following him who, though he had also stopped his car, had made no attempt to contact defendant. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

See also notes under catchline “Inquiry vs. investigative stop,” analysis line III H below.

Contacts between police and citizens as “seizures” of persons. —

A confrontation by a police officer will amount to a seizure only if the officer added to the inherent pressures to respond to questions by engaging in conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen. Waring v. State, 670 P.2d 357 (Alaska 1983).

The actions of a state trooper constitute a “seizure” when he instructs a suspect to sit in a patrol car. Upon such an assertion of authority, it is reasonable for the suspect to conclude that he is not free to disobey the trooper’s instructions and go about his business. Waring v. State, 670 P.2d 357 (Alaska 1983).

State instigation of “private” search. —

When the issue of state action arises the underlying question is whether, under the particular circumstances, the government so substantially instigated or insinuated itself into the private person’s action that the search can no longer be deemed “private.” Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Search for identification. —

Search of a person who has been subjected to a full custodial arrest for identification was permissible where the person was given an opportunity to identify himself and refused to do so. Stephens v. State, 698 P.2d 664 (Alaska Ct. App. 1985).

Protection extended to administrative searches. —

Construction of this section has been largely done in the context of searches and seizures by police officers seeking to obtain evidence to be used against an accused in a criminal prosecution. But the protection of this constitutional provision has also been extended in cases of administrative searches and seizures. Schultz v. State, 593 P.2d 640 (Alaska 1979).

A person’s privacy and security must be safeguarded against arbitrary invasions by governmental officials, such as fire inspectors. The rule is the same here as in the case of invasions by police officers and building and health inspectors, i.e., that, except in narrowly-defined classes of cases, the provisions of this section stand for the proposition that a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Permissible administrative searches. —

Where the searches are in furtherance of an administrative purpose and not to discover contraband unrelated to that purpose or evidence of unrelated crimes, it is permissible under this section. State v. Salit, 613 P.2d 245 (Alaska 1980).

See also notes under catchline “Searches by means of airport screening,” etc., under this analysis line, below.

Where the administrative action is merely a cover for illegal police activity, otherwise permissible administrative searches and seizures may be held invalid. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Entry of building in search of suspect. —

A police officer may not enter a dwelling in search of a suspect for whom he has an arrest warrant unless, at a minimum, he has probable cause to believe the suspect is within. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Home afforded special protection. —

The home has traditionally been afforded special protection under the 4th amendment of the United States Constitution and under the Alaska Constitution. State v. Spietz, 531 P.2d 521 (Alaska 1975).

A door of the home represents a firm constitutional barrier whether or not it is open. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Property exposed to public is not protected. —

What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th amendment protection. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Property which has been converted for commercial use and is open to the general public is entitled to less privacy protection under the federal 4th amendment than a purely private dwelling. Howard v. State, 583 P.2d 827 (Alaska 1978).

But property preserved as private is. —

What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

Wherever an individual may harbor a reasonable “expectation of privacy,” he is entitled to be free from unreasonable governmental intrusion. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

There is a twofold requirement: First, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973); Nathanson v. State, 554 P.2d 456 (Alaska 1976); Anderson v. State, 555 P.2d 251 (Alaska 1976).

The test for determination of the applicability of 4th amendment protections requires “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The dual requirement for 4th amendment protection set forth by Justice Harlan in his concurrence in Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), first, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as reasonable, has been adopted for Alaska. State v. Glass, 583 P.2d 872 (Alaska 1978). See State v. Daniel, 589 P.2d 408 (Alaska 1979).

Content and incidence of the constitutional protection of privacy must be shaped by the context in which it is asserted. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

Items already seen under lawful circumstances. —

Where the items in question have been exposed to police view under unobjectionable circumstances, no reasonable expectation of privacy is breached by an officer’s taking a second look at matter with respect to which expectation of privacy already has been at least partially dissipated. Griffith v. State, 578 P.2d 578 (Alaska 1978); Reeves v. State, 599 P.2d 727 (Alaska 1979).

Warrantless monitoring of private conversations on the mere consent of a participant violates the right of privacy and constitutes an unreasonable search and seizure under this section and Alaska Const., art. I, § 22. Aldridge v. State, 584 P.2d 1105 (Alaska 1978).

Warrantless monitoring of a private conversation by a participant to that conversation violates this section and Alaska Const., art. I, § 22. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Warrantless nonconsensual recordings are violative of the constitutional rights of the person being recorded. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

One communicating private matters to another exhibits an actual (subjective) expectation of privacy whether or not the listener is equipped with electronic devices. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

The expectation that one’s conversations will not be secretly recorded or broadcast should be recognized as reasonable. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

In the absence of limited exceptions, a search warrant should be obtained from an impartial magistrate, based on probable cause to believe that criminal activity will be discovered, before electronic monitoring of conversations should be allowed. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

Glass decision applies prospectively. —

The decision in State v. Glass , 583 P.2d 872 (1978), holding that warrantless electronic monitoring of a conversation between a police informant and a defendant violated the defendant’s right of privacy and freedom from unreasonable searches and seizures under the Alaska Constitution, will apply prospectively to activity occurring on or after September 15, 1978, the date of the decision, except for the Glass case itself and State v. Thornton , 583 P.2d 886 (1978), and Aldridge v. State , 584 P.2d 1105 (1978), which were announced on the same day as Glass, and Coffey v. State , 585 P.2d 514 (1978), the announcement of which was in addition to participant monitoring. These cases are governed by the new ruling. Coffey v. State, 585 P.2d 514 (Alaska 1978); LeDuff v. State, 618 P.2d 557 (Alaska 1980).

The holding in State v. Glass , 583 P.2d 872 (Alaska 1978), requiring a search warrant before electronic monitoring of conversations be allowed, applies only prospectively to police activity occurring on or after September 15, 1978, with the exception of Glass and three other cases considered at the same time. Coffey v. State, 585 P.2d 514 (Alaska 1978); Aldridge v. State, 584 P.2d 1105 (Alaska 1978) and State v. Thornton, 583 P.2d 886 (Alaska 1978). Robinson v. State, 593 P.2d 621 (Alaska 1979).

See also Mossberg v. State, 624 P.2d 796 (Alaska 1981), in which the supreme court refused to adopt an exception to the retroactivity ruling made in State v. Glass, 583 P.2d 872 (Alaska 1978).

Glass warrant. —

A warrant consistent with the requirements in State v. Glass , 583 P.2d 872 (Alaska 1978) issued pursuant to an informant’s testimony that defendant confessed his involvement in a robbery and homicide was valid; the informant led police to the murder weapon. State v. Anderson, 73 P.3d 1242 (Alaska Ct. App. 2003).

Warrantless videotaping of private conversations. —

If a person engages in a conversation that is protected from electronic monitoring under State v. Glass , 583 P.2d 872 (Alaska 1979), and if the conversation occurs in a place where the person has a reasonable expectation of visual privacy, such as a private apartment, then the police must secure a warrant before surreptitiously videotaping the conversation, even if they turn the sound off. State v. Page, 911 P.2d 513 (Alaska Ct. App. 1996).

The Alaska constitutional guarantee appertains to commercial or business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

The Alaska Constitution protects an individual’s reasonable and subjective expectation of privacy regarding commercial premises. However, both subjectively and in society’s judgment as to what is reasonable, distinctions may be made in the varying degree of privacy retained in different places and objects, and the supreme court is neither compelled to ignore the profound differences distinguishing one’s home from one’s business nor compelled to presume that people desire or expect the police to conduct themselves in identical fashion with respect to each. State v. Myers, 601 P.2d 239 (Alaska 1979).

Exhibition of subjective expectation of privacy. —

Owners of business premises exhibited an actual (subjective) expectation of privacy in their business establishment, and their expectation of privacy is one that society is prepared to recognize as reasonable. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless administrative inspections prohibited. —

In light of the expansive protections afforded to citizens of Alaska by virtue of this section and Alaska Const., art. I, § 22 against warrantless searches and seizures and invasions of privacy, the Alaska Constitution prohibits warrantless administrative inspections of private business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

See notes under catchline “Protection extended in cases of administrative searches,” under this analysis line, above.

Obtaining warrant for administrative search. —

The requisite showing necessary to obtain a warrant for an administrative search is one of attenuated probable cause and this standard is both reasonable and constitutionally permissible. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless inspection unconstitutional. —

A warrantless Occupational Safety and Health Act inspection, as authorized by AS 18.60.083(a) , constitutes an unconstitutional search in that it is violative of this section. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Since violations of Alaska’s Occupational Safety and Health Act can result in significant fines and imprisonment, the self-protection and private interests of the owner of business premises are deserving of, although not equivalent to, the significant constitutional solicitude and protection afforded Alaska’s citizens in criminal prosecutions, for broad statutory safeguards are inadequate substitutes for individualized judicial review of applications for search warrants. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Proscriptions apply only to governmental action. —

The proscriptions against unreasonable searches and seizures contained in the United States and Alaska constitutions apply only to governmental action. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Search for government’s benefit. —

Where a search is conducted solely for the government’s benefit, or when the state’s officer participates in the conduct, then the conduct cannot be regarded as a strictly private act. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Where a police officer was present at the time of the warrantless search, initiated it by requesting defendant’s wallet, and then participated in it by riffling through the wallet, although the wallet was actually taken from defendant by his friend, a private citizen, obviously the friend’s conduct was strictly for the government’s benefit, since he already had been given his warnings and certainly he did not need or want to determine defendant’s identification, and the search was not a “private search.” Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (U.S. 1966), limited, United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (U.S. 2004); Schraff v. State, 544 P.2d 834 (Alaska 1975).

Purpose of warrant requirement. —

See Keller v. State, 543 P.2d 1211 (Alaska 1975); Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The purpose of the warrant requirement is to prevent the police from hasty, ill-advised, or unreasonable activities. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Searches conducted outside the judicial process. —

Subject only to a few specifically established and well-delineated exceptions, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971); Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless searches are “per se unreasonable” unless they fit within a recognized exception to the warrant requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975); Gieffels v. State, 590 P.2d 55 (Alaska 1979); State v. Myers, 601 P.2d 239 (Alaska 1979).

A search conducted without a warrant is per se unreasonable unless the search fits within one of the few specifically established and well-delineated exceptions to the warrant requirement. Zehrung v. State, 569 P.2d 189 (Alaska 1977); Cruse v. State, 584 P.2d 1141 (Alaska 1978); Lupro v. State, 603 P.2d 468 (Alaska 1979).

A search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement. State v. Daniel, 589 P.2d 408 (Alaska 1979); Schultz v. State, 593 P.2d 640 (Alaska 1979); Reeves v. State, 599 P.2d 727 (Alaska 1979); Deal v. State, 626 P.2d 1073 (Alaska 1980).

A search conducted without a warrant will ordinarily be regarded as per se unreasonable unless it falls within one of the previously delineated exceptions to the warrant requirement, such as a search to which an individual voluntarily consents. Frink v. State, 597 P.2d 154 (Alaska 1979).

As to exceptions, see notes under analysis line III, “Exceptions.”.

Scope of search. —

As to whether a search is beyond the scope permitted by a search warrant, the supreme court is permitted to look to the circumstances surrounding the issuance of the warrant and will not limit its inquiry to the face of the warrant. Ellsworth v. State, 582 P.2d 636 (Alaska 1978); Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Although a search warrant was somewhat ambiguous in referring to “the premises known as the residence of Spencer Ellsworth,” after reviewing the circumstances surrounding the issuance of the search warrant, including the facts contained in the sworn affidavit of the police officer’s personal observations, the supreme court determined that the search of defendant Ellsworth’s barn was not beyond the scope contemplated by the search warrant. Ellsworth v. State, 582 P.2d 636 (Alaska 1978).

Meaning of “search.” —

The term “search” implies some exploratory investigation or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” Brown v. State, 372 P.2d 785 (Alaska 1962); McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” Weltz v. State, 431 P.2d 502 (Alaska 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); Daygee v. State, 514 P.2d 1159 (Alaska 1973); Schraff v. State, 544 P.2d 834 (Alaska 1975); Gray v. State, 596 P.2d 1154 (Alaska 1979).

The term “search” implies some exploratory invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. Anderson v. State, 555 P.2d 251 (Alaska 1976).

It is well settled that an officer’s observation of things in plain view made from a place where he has a right to be does not constitute a search in the constitutional sense. Conversely, when observations are made from an area to which the officer has not been expressly or impliedly invited, the intrusion is an unlawful search unless made pursuant to a warrant or one of the established exceptions to the warrant requirement. Chilton v. State, 611 P.2d 53 (Alaska 1980).

The evidence before the trial court was wholly insufficient to establish by a preponderance of the evidence that at the time the observations by the police officers from a path were made, the path was open to the public or was otherwise a place where the officers had a right to be. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Search must be reasonable. —

A search would be unlawful and the evidence seized in the search inadmissible if the search was unreasonable under the 4th amendment to the federal constitution and this section. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

The guiding criterion in resolving search and seizure issues is one of reasonableness in the constitutional sense. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

No exact formula for determining reasonableness. —

There seems to be no exact formula for the determination of reasonableness in connection with a search and seizure and so each case must be decided on its own facts and circumstances. Ellison v. State, 383 P.2d 716 (Alaska 1963); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

A search which is reasonable at its inception may violate the 4th amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Lapse of time. —

Lapse of time between legal entry and commencement of investigation in the usual case has not been held to be so unreasonable as to affect the legality of the presence of the investigating officers on the premises. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

The fact that approximately ten hours intervened between the original legal entry on the premises by the chief of police, and the commencement of a full-scale police investigation, converted what would otherwise have been a legal police investigation into a violation of defendant’s constitutional right of privacy. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

The intensity of the search depends on the nature of the crime charged. Lemon v. State, 514 P.2d 1151 (Alaska 1973); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

A seizure contemplates a forcible dispossession of the owner and it is not a voluntary surrender. Brown v. State, 372 P.2d 785 (Alaska 1962); Weltz v. State, 431 P.2d 502 (Alaska 1967); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Prohibited search and seizure. —

See Fresneda v. State, 458 P.2d 134 (Alaska 1969).

Reseizure of evidence. —

There is no search or seizure when evidence, once properly seized, is subsequently seized after identification and arrest of persons believed to be committing the crime. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

There is no second seizure or search when the government reacquires possession of contraband once validly seized where contraband is placed in transit from one person to another, is initially discovered through lawful means, such as a search by a private person, law enforcement officials come into lawful possession of the contraband, authorities in possession forward the parcel to authorities at the intended destination under controlled circumstances so the receiving authorities have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents, and the parcel is under security or under reasonably continuous surveillance by authorities once it arrives at its destination. The reasonably continuous surveillance must continue after the consignee claims the container, as any substantial break in the chain of custody will vitiate the lawfulness of the search. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

The “reassertion of control” doctrine announced in United States v. DeBerry , 487 F.2d 448 (2d Cir. 1973), is subject to the following limitations: (1) contraband must be placed in transit from one person to another; (2) the contraband must be initially discovered through lawful means, such as a search by a private person; (3) law enforcement officials must come into lawful possession of the contraband; (4) authorities in possession must forward the parcel to authorities at the intended destination under controlled circumstances, and thus, the receiving authorities must have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents; (5) the parcel must be under security or under reasonably continuous surveillance by authorities once it arrives at its destination, and the reasonably continuous surveillance must continue after the consignee claims the container; and (6) any substantial break in the chain of custody will vitiate the lawfulness of the search. Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where a Los Angeles airline employee discovered drugs being shipped as air freight and notified police, who seized the boxes that were in plain view and shipped the boxes to Anchorage police after notifying them of the shipment and providing a description of the boxes, and Anchorage police received the boxes and loaded them into defendant’s car, watched as he drove home, and arrested him for possession of drugs with intent to sell, the boxes were validly seized. The subsequent seizure and opening of the boxes by Anchorage authorities did not constituted a second, distinct search subject to the 4th amendment’s warrant requirement. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Competency of investigators. —

The duty police officer who responds to an emergency call and discovers a homicide is not necessarily a competent officer to conduct the type of investigation necessary to protect the interests of society. This is particuarly the case with respect to a small frontier village. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

In a populous area the officer discovering a homicide could remain at the scene until trained investigators arrived to conduct an investigation. In that situation the presence of the officer making the legal entry would continue until summoned investigators arrived. Only minutes or possibly no more than an hour or two would ordinarily elapse between the legal entry and the commencement of the police investigation of the homicide. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

Knock and announce requirement. —

The supreme court found it unnecessary to squarely decide whether the Alaska Constitution contains its own requirement that a police officer announce his authority and purpose prior to entering premises to execute a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Even if the Alaska Constitution does contain its own knock and announce requirement before a police officer can enter premises to execute search warrant, the substantial compliance doctrine should apply, as it does under AS 12.25.100 and 12.35.040 , which operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Forced entry. —

Forced entry into appellant’s residence by police who had a search warrant and had announced their identity and purpose was reasonable and therefore did not violate this section. Davis v. State, 525 P.2d 541 (Alaska 1974).

Suppression of evidence illegally seized is always predicated on this section, and Alaska Const., art. I, § 22 is merely used as a justification for giving this section a liberal interpretation. Wortham v. State, 641 P.2d 223 (Alaska Ct. App. 1982).

Federal exclusionary rule. —

Before statehood it was the established law in Alaska that evidence obtained by searches and seizures in violation of the federal constitution was inadmissible in the courts of the territory. That legal principle is generally referred to as the federal exclusionary rule, and is to be distinguished from the common-law rule that the admissibility of evidence is not affected by the illegality of the means through which a party has been enabled to obtain evidence. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Operates as constitutional mandate upon state courts. —

The U.S. supreme court, in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961), has in effect declared that the federal exclusionary rule, which it previously regarded as a rule of evidence, now operates as a constitutional mandate upon the state courts. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Through the 4th and 14th amendments. —

The interrelationship of the 4th amendment and the due process clause of the 14th amendment, guaranteeing to individuals the right of privacy free from unreasonable state intrusion, renders evidence obtained by unreasonable search and seizure inadmissible in a state criminal prosecution based thereon. Ellison v. State, 383 P.2d 716 (Alaska 1963).

The purpose of the exclusionary rule is two-fold: to deter police from using unconstitutional methods of law enforcement, and to preserve the integrity of the judicial system by not permitting the courts to be a party to the lawless invasion of a citizen’s constitutional rights. Waring v. State, 670 P.2d 357 (Alaska 1983).

Effect of exclusionary rule. —

Assuming the unconstitutionality of a search, the exclusionary rule would prohibit the use of both primary and derivative evidence gained from that search. However, derivative evidence is not sacred and inaccessible. If it is gained from an independent source or has become so attenuated as to dissipate the taint, it may be admissible. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The exclusionary rule extends only to those facts which were actually discovered through a direct process initiated by the unlawful act. Where the disputed evidence stems from an independent and lawful source, even though it could have emerged from the prior unlawful search as well, the evidence is admissible. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Trial court did not err in denying defendant's motion to suppress because the exclusionary rule did not apply to evidence obtained as a result of a mental health counselor's disclosure to authorities of defendant's use of child pornography since the police did not engage the counselor as their agent; the counselor could have violated professional or ethical rules against disclosure of confidential patient information, but any lapse was not an outgrowth of state action. Ravn v. State, — P.3d — (Alaska Ct. App. Feb. 28, 2018) (memorandum decision).

Exclusionary rule is inapplicable to driver’s license revocations as it would hamper legitimate efforts to keep drunk drivers off roads while adding minimal deterrence to unlawful police action; consideration of evidence obtained in violation of Alaska Const. art. I, § 22 did not undermine the procedural fairness of revocation hearings. Nevers v. State, 123 P.3d 958 (Alaska 2005).

Test for suppression of evidence. —

The test for finding whether derivative evidence must be suppressed along with the primary evidence yielded by the illegal search is whether, granting establishment of the primary illegality, the evidence to which instant objection is made had been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Extending the deterrence rationale for the exclusionary rule and arguing that any illegality in the police conduct nullifies the entire investigatory process so that no warrant can issue would exceed the sound limits of the exclusionary rule and deterrence principle by excluding relevant and trustworthy evidence. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Application of rule. —

The exclusionary rule which requires the suppression of illegally obtained evidence is usually not appropriately raised for the first time on appeal. Moreau v. State, 588 P.2d 275 (Alaska 1978).

The exclusionary rule is not the type of doctrine designed to protect against conviction of the innocent; rather, it is a prophylactic device to curb improper police conduct and to protect the integrity of the judicial process. Thus, justice does not generally require that it be applied on appeal where it is not urged at trial or where new grounds for its invocation are presented on appeal. Moreau v. State, 588 P.2d 275 (Alaska 1978); Deal v. State, 626 P.2d 1073 (Alaska 1980).

Burden of persuasion. —

Although the state has the ultimate burden of persuasion on the issue of whether the subsequently obtained evidence was untainted by a prior illegal search, the defendant has the initial burden of demonstrating by specific evidence that the evidence about which he complains grew out of the illegal search. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Use of illegally obtained evidence in parole revocation proceedings is not ordinarily barred by either the Alaska Constitution or its criminal rules. Davenport v. State, 568 P.2d 939 (Alaska 1977).

Illegally seized evidence may be considered in fashioning a sentence where the illegally seized evidence is reliable, where the police conduct involved in obtaining the evidence does not shock the conscience of the court, and where it is clear that the evidence was not obtained for purposes of influencing the sentencing judge. Elson v. State, 633 P.2d 292 (Alaska Ct. App. 1981), aff'd, 659 P.2d 1195 (Alaska 1983).

Admission of evidence held harmless error. —

Although it was not reasonable for police officers to conclude from the surrounding circumstances and the information at hand that the evidence would be destroyed or removed before a search warrant could be obtained, and such evidence was erroneously admitted, the supreme court concluded beyond a reasonable doubt that the error did not contribute to the verdict, and thus was harmless, since the police officer’s evidence merely corroborated the victim’s testimony, which in all material respects was further corroborated by the testimony of disinterested witnesses. Finch v. State, 592 P.2d 1196 (Alaska 1979).

The inevitable discovery doctrine permits the state to introduce evidence that is clearly the result of an illegal search or seizure, upon a showing that the government undoubtedly would have discovered the tainted evidence by lawful means. Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

A confession cannot normally be considered the type of evidence that inevitably will be “discovered” by legal, predictable police procedures so as to fall within the scope of the inevitable discovery doctrine. Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

As to waiver of objection to introduction of evidence on ground of illegal search and seizure, see Johnson v. State, 486 P.2d 379 (Alaska 1971).

Standing to assert violation of rights. —

A defendant has standing to assert the violation of a codefendant’s 4th amendment rights if he or she can show: (1) that a police officer obtained the evidence as a result of gross or shocking misconduct; or (2) that the officer deliberately violated a codefendant’s rights. Waring v. State, 670 P.2d 357 (Alaska 1983).

Warrant tainted by the illegal search. —

Evidence obtained as a result of a search warrant should have been suppressed where the warrant was based almost entirely on evidence obtained by troopers’ midnight entry onto defendant’s property. The troopers were not in a place where they had a legal right to be when they conducted the sniff, the State failed to advance any reason why the troopers could not have gathered their evidence during the day or why the court should have believed that defendant impliedly consented to a late-night visit, and thus, the search warrant they obtained was tainted by the illegal search. Kelley v. State, 347 P.3d 1012 (Alaska Ct. App. 2015).

B.Specific Application

Department store security guard’s search of customer’s purse was a reasonable exercise of the merchant’s common-law right to retrieve stolen merchandise. Jones v. State, 771 P.2d 462 (Alaska Ct. App. 1989).

Temporary detention of package on less than probable cause for purposes of address and telephone number verification and a canine sniff, where the package was not in the immediate possession of its owner, was upheld. Gibson v. State, 708 P.2d 708 (Alaska Ct. App. 1985).

Canine searches. —

Alaska’s stringent protection of its citizens’ privacy interests can be assured if the reasonable suspicion standard is applied to canine searches of areas of public access exterior to commercial buildings. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Police officers had reasonable suspicion to conduct a canine sniff of defendant’s warehouse, where the officers received a tip from a citizen informant that the warehouse owners did not behave as legitimate business people and renovations to the building were consistent with ones which would be needed to grow marijuana in the warehouse. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Exposure of luggage to drug detection dogs. —

Although exposure of luggage to a drug detection dog is a search under the Alaska Constitution, it is a minimally intrusive type of search, akin to an investigative stop and frisk under Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which may be used when police have a reasonable suspicion that drugs may be present in the container and that the drugs are being illegally imported to the state or are being illegally possessed for distribution. Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985).

Exposure of package to drug detection dogs. —

Defendant’s conviction for possessing cocaine with the intent to deliver was affirmed because the trial court properly denied defendant’s motion to suppress evidence obtained when narcotics enforcement officers subjected a package that he shipped through a private delivery service to inspection by a drug detection dog. The officers had received extensive specialized training in drug interdiction and in recognizing drug packages, and applied that training when they decided to have the package checked by the dog. Cooley v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2009) (memorandum decision).

Locked luggage. —

The expectation of privacy inherent in locked luggage is incomparably higher than a paper bag. Clark v. State, 574 P.2d 1261 (Alaska 1978).

As to search of closed containers in a vehicle, see Daygee v. State, 514 P.2d 1159 (Alaska 1973); Clark v. State, 574 P.2d 1261 (Alaska 1978); State v. Daniel, 589 P.2d 408 (Alaska 1979).

Box in possession of defendant. —

The seizure and subsequent search without a valid warrant of a box in the possesion of defendant at the time of his arrest was invalid. Metcalfe v. State, 593 P.2d 638 (Alaska 1979).

Items carried on person. —

That an individual has an actual expectation of privacy in items carried on the person is obviously true, and the expectation of privacy is one which Alaskan society would recognize as reasonable. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

See notes under catchline “Containers on person of arrestee” under analysis line III, below.

Napkin taken from defendant’s mouth. —

Surrender of a napkin from defendant’s mouth at gunpoint did not constitute an unreasonable search and seizure where the officers did not attempt to forcibly open defendant’s mouth. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Public restroom. —

When one is in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one’s behavior is subject to the observation of others who are in the public area. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Police officer, who entered a public restroom and noticed that two men were engaging in some sort of transaction in a lavatory stall, was justified in concluding that he was probably observing an illegal drug transaction and in telling the men to come out of the stall. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Guest in motel. —

A guest in a motel has a constitutional protected right to privacy in his motel room and motel personnel cannot consent to a search of the guest’s room. But after the rental period has terminated, a guest’s reasonable expectations of privacy are greatly diminished with respect to the right of motel management to enter. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Police presence during a private search by the chief of hotel security did not amount to governmental participation. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Apartment building tenant. —

No privacy interest of an apartment building tenant was violated by police contact with his building manager, even if that contact was the result of a trespassory entrance into the apartment building. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Apartment building tenant had no reasonable expectation that the building manager would not divulge information to the police concerning tenants residing in the building. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Search of tenant's computer. —

Even if the search warrant application established probable cause to search defendant's separate apartment, the troopers' search of defendant's laptop violated this section because the troopers offered no explanation of why evidence of the suspect's alleged forgery and falsification of business records would have been on defendant's laptop computer, which was portable and outside the suspect's immediate control, and there was no allegation that defendant was actively participating in the suspect's criminal scheme. Pohland v. State, 436 P.3d 1093 (Alaska Ct. App. 2019).

No expectation of privacy in commercial king crab fishing. —

See Wamser v. State, 600 P.2d 1359 (Alaska 1979).

Fishermen could not harbor an “actual (subjective) expectation of privacy” in conducting their crabbing operation in the waters of the state, at least not one that “society is prepared to recognize as reasonable.” Thus, crab fishermen had no protectable federal or state constitutional interest in the pots, bait, and crabs seized by officers of the Fish and Game Department when conducting a search to check the extent of compliance with a regulation. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

The commercial fishing for king crab does not share the same attributes of privacy as does the nature of the business conducted in a telephone booth, business office, store, or hotel room. King crab fishing involves public exposure. Nathanson v. State, 554 P.2d 456 (Alaska 1976).

Mail service account. —

Where employees of a private mail service provided information about who opened an account with the service, when the account was opened, and what directions the mail service received for forwarding the mail, this information did not constitute information about which the defendant, who opened the account, could have a reasonable expectation of privacy. D'Antorio v. State, 837 P.2d 727 (Alaska Ct. App. 1992).

Utility records are maintained by the utility and do not constitute information in which society is prepared to recognize a reasonable expectation of privacy. Samson v. State, 919 P.2d 171 (Alaska Ct. App. 1996).

Expectation of privacy as to trash. —

A review of several recent garbage can search cases reveals a basic core of factors to be considered in determining whether a reasonable expectation of privacy exists. These factors are: 1. Where the trash is located, 2. whether the dwelling is multiple or single unit, 3. who removed the trash, and 4. where the search of the trash takes place. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Factors readily form a continuum. At one end of the continuum is trash located close to a single-family dwelling, on the same property as the dwelling, and searched by police officers at that location. The supreme court observes, without so deciding, that this would be a strong case for holding the expectation of privacy to be reasonable. At the other end of the continuum is trash located off the premises of a multiple-unit dwelling, and searched by a person authorized to remove it. In such a case the supreme court would be unable to hold that the expectation of privacy was reasonable. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Legality of search of trash receptacle. —

The legality of the search turns not on the nature of the refuse but on whether the receptacle lies within the zone of protection afforded by the 4th amendment. Thus, property which is abandoned but which rests in a receptacle temporarily maintained inside a dwelling could not be searched or seized by the police unless a warrant had issued. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Defendant harbored no actual or objectively reasonable expectation of privacy in an outside multiple-dwelling trash receptacle from which municipal collections were made. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Activities of depositing garbage in a dumpster and withdrawing from the area were clearly exposed to plain view. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

See notes under analysis line III B, “Abandoned Property.”, below.

No jailhouse expectation of privacy. —

State did not violate defendant’s rights when it recorded his telephone conversations from jail to his wife without a warrant. Defendant did not have a reasonable expectation of privacy in his phone calls from jail; signs were posted above the prisoner telephones, warning inmates that their telephone calls could be monitored and recorded. State v. Avery, 211 P.3d 1154 (Alaska Ct. App. 2009).

Exterior of vehicle in police possession. —

There was no reasonable expectation of privacy in the exterior of a vehicle which was lawfully in the possession of the police. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Security checks of business premises. —

Law enforcement personnel may enter commercial premises without a warrant only when, pursuant to a routine after-hours security check undertaken to protect the interests of the property owner, it is discovered that the security of the premises is in jeopardy, and only when there is no reason to believe that the owner would not consent to such an entry. State v. Myers, 601 P.2d 239 (Alaska 1979).

Regarding security checks of business premises, locked premises must be taken as indicating that no warrantless entry is authorized, any search conducted incident to a legitimate entry must be brief and must be limited and necessary to the purpose of ensuring that no intruders are present on the premises, and someone responsible for the premises must be informed, as soon as is practicable, of the protective measures taken. State v. Myers, 601 P.2d 239 (Alaska 1979).

Fire officials. —

Fire officials need no warrant to remain in a building for a resonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional. Schultz v. State, 593 P.2d 640 (Alaska 1979).

The exigency justifying the entry of a house by the fire officials, and seizure of evidence indicating arson does not end when the fire is contained or under control, or even when the last burning ember is thought to be extinguished, since fire officials are charged not only with extinguishing fires but with finding their causes. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Where a fire inspector’s entry into a house took place within 25 to 40 minutes after the firefighters had arrived at the scene, when the fire was under control but not entirely extinguished, and it was the inspector’s specific duty to attempt to discover the cause of the fire, her entry into the building at that time, and her remaining in the building for one to one and one-half hours, were well within a “reasonable time” to investigate the cause of the fire without the necessity of first securing a warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

See notes under catchline “Protection extended in cases of administrative searches,” under this analysis line I A, above.

Search by a private citizen not acting in conjunction with or at the direction of the police does not violate the constitutional prohibitions against unreasonable search and seizure. J. M. A. v. State, 542 P.2d 170 (Alaska 1975); State v. Stump, 547 P.2d 305 (Alaska 1976); Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The zealous citizen does not subject his activities to the requirements of the 4th amendment and this section. Snyder v. State, 585 P.2d 229 (Alaska 1978).

A purpose to enforce the law should not ipso facto convert a private citizen into a state agent for purposes of the 4th amendment. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Expectation of privacy from video surveillance in workplace. —

Based upon the open and public nature of the place where defendant worked, and the fiduciary nature of the work she was doing as manager of a theater box office, she did not have a reasonable expectation of privacy from video surveillance in the box office. Cowles v. State, 961 P.2d 438 (Alaska Ct. App. 1998), aff'd, 23 P.3d 1168 (Alaska 2001).

When vision-enhancing technology deemed a search. —

Commercial availability should not be the determinative factor when analyzing whether a particular form of technology transforms state action into a search; rather, an officer's use of vision-enhancing technology should be deemed a search if the technology allows the officer to make observations that are significantly more detailed than what an unaided human eye would be able to see at the same distance. McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Search by governmental officials for private purpose. —

The 4th amendment does not apply to searches engaged in by governmental officials when such officials act for a private purpose or outside the scope of duties related to law enforcement. Such a limitation involves a question of the capacity in which the state agent acts during the course of the search. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The controlling principle does not depend so much upon which department of state government employs the officer, but instead upon the nature of the duties performed and the part the officer may have played in the course of events leading to appellant’s arrest and the seizure which followed. Bell v. State, 519 P.2d 804 (Alaska 1974); J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Foster parents are not agents of the state for purposes of the constitutional proscription against unreasonable searches and seizures. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

Where the operator of a foster home is in the extremely difficult position of endeavoring to fulfill the role of parent, and, at the same time, perform the task of supervising the activities of a minor found to be a delinquent, under the circumstances of such a relationship, a search of the foster child’s room can hardly be regarded as the type of unreasonable activity constitutionally prohibited. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

The duties of foster parents do not encompass responsibilities of a law enforcement officer similar to those of an airport security officer discussed in Bell v. State , 519 P.2d 804 (1974). Foster parents are not charged with the enforcement of penal statutes or regulations, nor are they entrusted with ensuring the physical security of the public. They are no more responsible for the detection of criminal activity or the apprehension of those participating in such activity than would be any other private citizen. They merely supervise on behalf of the state those children committed to their care. J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

School officials. —

School officials, while they are public employees subject to constitutional constraints, are not “law enforcement officers” whose conduct is governed by state and federal constitutional limitations on searches and seizures. D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982).

Application of search and seizure prohibitions to air freight shipments. —

See Bell v. State, 519 P.2d 804 (Alaska 1974).

An airport security officer who investigated a suspicious shipment was an agent of the state against whom the prohibitions of the 4th amendment apply, despite the fact that he was an employee of the Department of Public Works, and not the Department of Public Safety. Bell v. State, 519 P.2d 804 (Alaska 1974).

Search by airlines employee. —

Where a cargo handler for an airline had cause to inspect a package which had been accidently dropped to detect improper declaration of contents, to ensure that the airline facilities were not being used in the commission of a crime, to insulate the airline from criminal liability for transporting contraband and to ascertain possible damage, his search did not violate defendant’s rights. Bell v. State, 519 P.2d 804 (Alaska 1974).

There is no dispute that an airline inspection undertaken at the initiative of airline employees, for independent airline purposes, and without government participation, is a private search and is not subject to the requirements of the 4th amendment. Bell v. State, 519 P.2d 804 (Alaska 1974).

Initial search of a package by an airlines employee in the course of his duties did not violate defendant’s constitutional rights. State v. Stump, 547 P.2d 305 (Alaska 1976).

Searches by airline employees, acting for an independent and legitimate airline purpose and not in conjunction with or at the direction of the police, do not violate constitutional prohibitions against unreasonable search and seizure. Snyder v. State, 585 P.2d 229 (Alaska 1978); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979); Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Prior contact of a general nature between the state police and airline employees does not cause private airline employees to become agents of the police. Snyder v. State, 585 P.2d 229 (Alaska 1978); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

It is generally recognized that airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where upon defendant’s briefcase being passed through airport X-ray machine, airport employee could not discern any of its contents on the screen, she was justified in searching the briefcase and in opening a purse containing narcotics found inside the briefcase to make sure that it contained no weapons. Spezialy v. State, 661 P.2d 1095 (Alaska Ct. App. 1983).

Where, after he discovered cocaine powder in a package supposedly containing T-shirts, an airlines employee called the police and when the investigator arrived, removed a T-shirt from the box and showed the investigator the plastic bag containing the powder, and where the investigator then took the bag and tested the powder, this inspection was permissible and the subsequent seizure of the powder justifiable, because there is no indication the inspection was done at the direction of the police, nor was there an attempt by the officer to open the original package since the investigator was handed a T-shirt from a box opened by the airlines employee, and the powder contained in plastic bags was pointed out to him. No police search had occurred up until this time. There was no “prying into hidden places for that which is concealed” by the officer, and thus the contraband was in plain view. State v. Stump, 547 P.2d 305 (Alaska 1976).

Although the police had advised the airline employees as to the latter’s right to search, and the airline employee in question had previously discovered drugs and cooperated with law enforcement officials, but the police had not requested a specific search of defendant’s package or participated in the initial discovery of the contraband, the employee’s conduct in opening the package, received under circumstances reasonably arousing suspicion, did not constitute governmental activity. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Where there was no evidence that an airline employee’s search was aimed at discovering weapons, explosives or other destructive substances, it was not made pursuant to the Air Transportation Security Act, Pub. Law 93-366, Title II, 88 Stat. 415 (1974), authorizing air carriers to condition transportation on a consent to search for such purpose; and the search was not governmental activity. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Although there was nothing about the packages themselves that aroused suspicion, nor was the physical appearance of the consignor out of the ordinary, where the airline employee thought the consignor might have been under the influence of something due to the consignor’s repetitive speech, exaggerated gesticulation, scribbled handwriting, possibly dilated eyes, and general nervousness, the airline employee had reasonable and articulable suspicions that the articles might be something other than what was declared. Thus, the employee’s intrusion in opening the packages was justified by the presence of a legitimate airline purpose: Verification of the contents of the boxes. McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Where the initial opening of the package was performed by an airline employee without instigation from a government official and for a legitimate airline purpose, once the suspicious contents of the package had been observed by that employee, it was permissible to reshow the contents to an Alyeska Pipeline Security employee, even assuming arguendo that the security employee was a governmental official or agent at the time the package was reopened. Such a reshowing did not constitute a search by the Alyeska Pipeline Security employee, where he did not know that the package had been previously opened, he did not suggest that the package be opened until he was advised that it could be legally opened by the airline personnel, and he remained a passive observer of the contents of the package. Stange v. State, 559 P.2d 650 (Alaska 1977).

Where an airline employee’s search, which discovered a baggie containing a white substance, was valid, it follows that a police officer’s seizure of the package, in light of his narcotics experience and the sender’s misrepresentations concerning the contents of the package, was valid under the “plain view” doctrine since the baggie containing white powder was not “an apparently innocuous object.” Whittemore v. State, 617 P.2d 1 (Alaska 1980).

Where a government agency threatened airlines with administrative fines if they failed to implement screening profiles and hand-searches of selected passengers’ carry-on luggage, effectively coercing them to do the government’s bidding, the ensuing searches constituted state action. Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Independent airline purposes for airline inspections. —

See Bell v. State, 519 P.2d 804 (Alaska 1974); McConnell v. State, 595 P.2d 147 (Alaska), cert. denied, 444 U.S. 918, 100 S. Ct. 235, 62 L. Ed. 2d 173 (U.S. 1979).

Airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. Snyder v. State, 585 P.2d 229 (Alaska 1978).

Airport screening. —

Searches by means of airport screening come under the administrative search exception of the warrant requirement. State v. Salit, 613 P.2d 245 (Alaska 1980).

Since the purpose of searches under the Air Transportation Security Act of 1974, Pub. L. No. 93-366, Title II, §§ 201-202, 88 Stat. 415, is to prevent weapons from being brought upon planes for hijacking purposes and to discourage such conduct, the search must be as limited as possible to accomplish that purpose. Therefore, where a passenger’s garment bag had been subjected to an X-ray search, the contents were observable by this means, and no evidence of weapons or explosives was discovered, nothing justified a more intensive search than in the case of the bags of the other passengers. State v. Salit, 613 P.2d 245 (Alaska 1980).

While possession of narcotics paraphernalia discovered in handbag may be of evidentiary value, it is not illegal, per se, and cannot constitute probable cause for arrest. State v. Salit, 613 P.2d 245 (Alaska 1980).

Search of wallet. —

Riffling through a person’s wallet for contents which are unobservable from outside the wallet fits the definition of a search. Schraff v. State, 544 P.2d 834 (Alaska 1975); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Where defendant was arrested for armed robbery and after arrival at the police station, booked and taken to an interview room, where 20 minutes to one-half hour later she was asked to empty her pockets and her wallet was searched, such search was valid since evidence of an armed robbery clearly can exist on the person of the arrestee, whether it takes the form of cash (including marked money) or indications of premeditation (for example, floor plan sketches). Middleton v. State, 577 P.2d 1050 (Alaska 1978).

An examination of the tires of a vehicle is not a search. See Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

A trooper’s conduct did not constitute a search where facts showed that defendant himself retrieved the weapon and presented it to the trooper and there was no evidence of duress or coercion on the part of the troopers. McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Warrantless inspection of suitcase. —

Warrantless police inspections of the contents of suitcase did not constitute impermissible searches or seizures where in one instance the opening of the suitcase by the chief of hotel security was at most a repetition of initial private searches and in the other instance the suitcase was already open and the contraband was in plain view. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Transporting incapacitated person. —

An officer transporting a person incapacitated by drink has a valid reason to make a limited search for possible weapons which might be used to injure him. Peter v. State, 531 P.2d 1263 (Alaska 1975).

Where under the Uniform Alcoholism and Intoxication Treatment Act (AS 47.37), defendant should have been taken to a treatment facility or an emergency medical service, and where at that point the police would normally release him from custody and thus would not have direct access to items in the possession of the intoxicated person, any items that were revealed or came into the possession of the police officer solely as a result of a more detailed search performed when defendant was placed in jail were the subject of an illegal search and seizure and should be suppressed. Peter v. State, 531 P.2d 1263 (Alaska 1975).

AS 47.37.170 does not violate section. —

While a statute countenancing an unreasonable search would be in violation of the 4th amendment to the United States Constitution and this section, the provisions of AS 47.37.170 , relating to treatment and services for intoxicated persons and persons incapacitated by alcohol, constitute no such violation. Peter v. State, 531 P.2d 1263 (Alaska 1975).

Breath test. —

A search of a person incident to an arrest is a recognized exception to the search warrant requirement. A breath test constitutes a search. State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990).

Implied consent statute is unconstitutional. —

Having considered the three factors from the Supreme Court’s analysis in Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), the court concluded that AS 28.35.031(g) , relating to implied consent by drivers for chemical or breath tests, permits unreasonable intrusions contrary to the Fourth Amendment of the U.S. Constitution and to Alaska Const., art. I, § 14. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Implied consent statute — exigent crcumstances. —

The implied consent provisions of AS 28.35.031(g) satisfied minimal constitutional requirements for warrantless searches when exigent circumstances existed. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Probationers and parolees are treated similarly for purposes of search and seizure questions. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Scope of search for probation violator in parents’ home. —

Where officers had a warrant for defendants’ son’s arrest, because they knew that the son resided with defendants at their home and because they had probable cause to believe that the son was currently within that residence, the officers acted lawfully when they entered the residence to arrest the son for violating his probation; the officers needed no separate warrant to enter defendants’ personal bedroom to search for their son. Anderson v. State, 145 P.3d 617 (Alaska Ct. App. 2006).

Parole arrest warrants. —

The conditions placed on a parolee make him subject to arrest for a wide variety of causes which do not apply to others. Davenport v. State, 568 P.2d 939 (Alaska 1977).

To impose the same requirements on the arrest of a parolee as are otherwise mandated for an arrest including an affidavit or sworn complaint would have constituted meaningless additional time and effort on the part of parole officers. Nevertheless, except in cases where exigencies required an immediate arrest, the parole officer should have secured a warrant from the parole board or a member of it based on the requirement in former AS 33.15.200. Davenport v. State, 568 P.2d 939 (Alaska 1977).

For a discussion of cases decided in state and federal courts addressing the subject of parole arrest warrants, see Davenport v. State, 568 P.2d 939 (Alaska 1977).

Right to search as condition of release on parole. —

Depending on the nature of the crime involved, a condition of release granting authorities the right to search premises and persons at reasonable times could stand muster under both the Alaska and federal constitutions. Released offenders subject to searches and seizures conducted pursuant to such conditions would be protected from undue harassment by the limitations of due process. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Although the supreme court does not believe that a released offender has voluntarily consented to all conditions of parole and it likewise rejects the custody rationale under which a released offender was regarded as constitutionally entitled to no more rights than he would have enjoyed if incarcerated, it recognizes that conditioning release on some forms of search by correctional authority is both consistent with the goal of rehabilitation and necessary for the proper functioning of the parole system. To this extent, parolees have a diminished expectation of privacy. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Warrantless searches of parolees or probationers and their residences should not be countenanced unless there is a direct relationship of the searches to the nature of the crime for which the parolee was convicted. Roman v. State, 570 P.2d 1235 (Alaska 1977); Sprague v. State, 590 P.2d 410 (Alaska 1979).

The goals of rehabilitation of the individual and protection of the public do not require that a parolee be subject to searches in a manner different from other persons. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Where defendant was convicted of possession of heroin, the right to request specimens for urinalysis and to search him and his quarters at reasonable times and in a reasonable manner to assure that he would not continue to possess illegal drugs was necessary to the proper functioning of the parole system; and where the right to perform such searches was limited to parole officers and peace officers acting under their direction, the parole authorities were not clearly mistaken in authorizing the search and in conducting it. Further, where defendant’s inability to furnish a specimen for urinalysis prevented use of that means of ascertaining whether he was using drugs, in view of his imminent departure, it was reasonable to search his person at that time. Roman v. State, 570 P.2d 1235 (Alaska 1977).

It was improper for the superior court to condition the probation of a defendant convicted for burglary on the requirement that he submit to a warrantless search, upon the request of a probation officer, for the presence of narcotics or dangerous drugs, since defendant was not accused of any drug offenses, nor was it shown that he was addicted to drugs or that his involvement in the burglary was precipitated by a need for money to purchase illegal drugs. Sprague v. State, 590 P.2d 410 (Alaska 1979).

Parolee otherwise has same protections as ordinary person. —

Except in circumstances where reasonably conducted searches and seizures are required by the legitimate demands of correctional authorities and are set forth as conditions of parole by the Parole Board, the Alaska Constitution entitles a released offender to the same protections as an ordinary person. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Parole Board authorizes searches. —

Conditions of parole authorizing searches should be specified by the Parole Board and not left to the discretion of individual parole officers. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Parolee should have the right to be heard before conditions authorizing searches are imposed. Roman v. State, 570 P.2d 1235 (Alaska 1977).

Roman v. State, 570 P.2d 1235 (Alaska 1977), not given limited retroactive effect. —

See Gonzales v. State, 586 P.2d 178 (Alaska 1978).

Search of attache case. —

Warrantless search of defendant’s attache case by his parole officer, acting within the scope of his authority, was not constitutionally infirm. Gonzales v. State, 586 P.2d 178 (Alaska 1978).

Surrender of gun. —

Where, although defendant voluntarily surrendered his gun to the trooper for the purpose of immediate inspection, he did not thereby intend to give up custody of the weapon for other purposes, a seizure occurred when the trooper took the gun; however, once the gun was presented to the troopers for viewing they were entitled to seize it as evidence in plain view. McGee v. State, 614 P.2d 800 (Alaska 1980), cert. denied, 450 U.S. 967, 101 S. Ct. 1485, 67 L. Ed. 2d 617 (U.S. 1981).

Department of Revenue’s summons which was reasonably specific, asked only for material relevant to a legitimate tax inquiry, and was enforceable only by court order did not violate taxpayer’s right against unreasonable searches and seizures. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Importation of whiskey by mail. —

Once the whiskey had been lawfully exposed to the plain view of postal authorities, by a proper warrantless search of a fourth class package, nothing of constitutional significance prevented those authorities from surrendering the whiskey, as contraband, and without a warrant, to law enforcement officers charged with investigating violations of state law. Bergman v. State, 874 P.2d 958 (Alaska Ct. App. 1994).

No probable cause was shown. —

Where defendant controlled a small wooden box and refused every official request to give it up or look into it, and where he claimed he did not have a weapon when, in fact, the officer saw one in his pocket, these facts did not provide any “nexus” between the box and contraband, and the police did not have probable cause to believe that contraband would be found in the box. Dayton v. State, — P.2d — (Alaska Ct. App. Apr. 19, 2000) (memorandum decision).

Applied in

Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983); Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983); McCracken v. State, 685 P.2d 1275 (Alaska Ct. App. 1984); State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Quoted in

Hunnicutt v. State, 527 P.2d 1292 (Alaska 1974); City & Borough of Juneau v. Quinto, 684 P.2d 127 (Alaska 1984); State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Cited in

Sidney v. State, 571 P.2d 261 (Alaska 1977); Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979); Nelson v. State, 628 P.2d 884 (Alaska 1981); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Bloomstrand v. State, 656 P.2d 584 (Alaska Ct. App. 1982); Elson v. State, 659 P.2d 1195 (Alaska 1983); Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); Cullom v. State, 673 P.2d 904 (Alaska Ct. App. 1983); Shamberg v. State, 762 P.2d 488 (Alaska Ct. App. 1988); McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000); Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004); Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005); State v. Heisey, 271 P.3d 1082 (Alaska 2012).

II.Issuance of Warrants
A.In General

Neutral and detached magistrate. —

The amount of time spent in reviewing the affidavit for a search warrant is not by itself controlling of the magistrate’s neutral and detached manner. Since the purpose of requiring that warrants be issued by a neutral and detached magistrate is to assure that the inference of probable cause is drawn by a person who is not in a position to be influenced by personal or professional motives, what is required of that person is severance and disengagement from activities of law enforcement. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

There is a presumption that a judicial officer acts in a neutral and detached manner when he issues a warrant, and a magistrate does not lose his neutral and detached character merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warrants by him. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Where an officer had a short period of time in which to secure a warrant, in light of the exigencies of the situation, it was not improper for a magistrate to meet the officer at a parking lot near the airport where the subject matter of the search was to be picked up by the suspect. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Court must have facts. —

The court must have all the pertinent facts before it in order to determine whether there is sufficient, properly obtained evidence providing probable cause for a warrant to issue. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The question of whether an affidavit contains sufficient facts to establish probable cause for the issuance of a search warrant is a question of constitutional stature; it is imperative that a magistrate be presented with adequate supporting facts, rather than mere affirmations of suspicion or belief. Milne v. State, 607 P.2d 360 (Alaska 1980).

Implied mandate of truthfulness. —

The state and federal constitutional requirement that warrants issue only upon a showing of probable cause, in the opinion of the supreme court, contains the implied mandate that the factual representations in the affidavit be truthful. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Courts must investigate truthfulness. —

Since search warrants issue ex parte, the courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, challenges to the search warrant and affidavit may be properly entertained during the suppression hearing. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Duty of candor. —

Police and prosecutors owe a duty of candor to the court, particularly in light of the ex parte nature of proceedings for the issuance of a warrant, and must not withhold information which may taint the source of the probable cause they put forth. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

The constitutional protection against warrantless invasions of privacy is endangered by the concealment of relevant facts from the district court issuing the warrant. Warrants issue ex parte and the issuing court must rely upon the trustworthiness of the affidavit before it. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

A false affidavit in support of a search warrant can, in appropriate circumstances, nullify the warrant. Moreau v. State, 588 P.2d 275 (Alaska 1978).

Before the supreme court can hold that concealment of relevant facts will invalidate a warrant, it must find that the information will materially influence the district court judge to issue a warrant he would have otherwise denied. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Misstatement must be material. —

In order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Misstatement in search warrant was not sufficiently material to invalidate warrant. Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Misstatement in search warrant was not plain error. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Observations of third party. An affidavit may rely on the observations of a third party, so long as a substantial basis for crediting the hearsay is presented. State v. Davenport, 510 P.2d 78 (Alaska 1973); Keller v. State, 543 P.2d 1211 (Alaska 1975).

A search warrant may be issued on the basis of reasonably reliable hearsay statements from a police informant. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Use of informant’s tip. The test for crediting an informant’s tip which is used to establish probable cause for a search warrant is that the information be reliable and the informant trustworthy. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Informer’s identity need not be disclosed. —

There is no constitutional basis for requiring the disclosure of an informant’s identity. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Detail required where personal knowledge of informant not alleged. —

Absent an affirmative allegation of personal knowledge of the informant in the affidavit, the facts supplied must be so detailed as to support an inference of personal knowledge. Harrelson v. State, 516 P.2d 390 (Alaska 1973); Keller v. State, 543 P.2d 1211 (Alaska 1975).

An affidavit is not deficient merely because it did not explicitly set forth the means by which the informant obtained his information. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

In order to prevent groundless searches based on wholly unreliable information from being inflicted on citizens of the state, the circumstances that would justify a magistrate in crediting an informant’s statements shall be set out with specificity in the affidavit. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Customarily, this requirement has been met by means of an allegation that the informant had given accurate information in the past. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Generally, the detail must be sufficient so that a magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Under both federal law and Alaska law, where an affidavit relies upon the assertions of confidential informants to establish probable cause, the affiant must set forth facts which enable the magistrate to judge for himself the probable credibility of the informant. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Corroboration of informant’s tip. —

As an alternative to a demonstration that the informant was personally trustworthy, the United States supreme court has indicated that an affidavit which alleged facts tending to corroborate the reliability of the information (as opposed to the informer himself) would be constitutionally sound also. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

A showing of probable credibility of a confidential informant is adequate where the affidavit alleges “that the informant had given accurate information in the past.” Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The credibility of an informant’s tip could be confirmed by independent corroboration of incriminating facts by the police. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

Probable cause may rest on reasonably trustworthy information from an informant. However, some of the details of the information given by the informant must be verified before an arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Police are not required to verify an incriminating fact before corroboration can be used to demonstrate the reliability of an informant. Schmid v. State, 615 P.2d 565 (Alaska 1980).

Minimum amount of detail determined on case-by-case basis. —

The minimum amount of specificity or detail necessary to support an inference that the source of the informant’s tip is trustworthy can only be determined on a case-by-case basis. Keller v. State, 543 P.2d 1211 (Alaska 1975).

Independent verification unnecessary. —

Where informer was found to be credible, her information was based on personal knowledge, and her testimony was given under oath, the search warrant need not be declared invalid for lack of factual corroboration. Hodsdon v. State, 698 P.2d 1224 (Alaska Ct. App. 1985); Schmid v. State, 615 P.2d 565 (Alaska 1980).

Citizen informers. —

See Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Probable cause may rest on reasonably trustworthy information from an informant. If the informant is a cooperative citizen rather than informant from criminal milieu, his or her reliability need not be established before the arrest. However, some of the details of the information given by the informant must be verified before the arrest. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Citizen informant established. —

Despite defendant’s confession to other crimes and the grant of immunity for them, defendant remained a citizen informant to evaluate his credibility and probable cause, where defendant had recounted a shooting, admitted that he had been in the car and had personally witnessed the shooting, and before defendant went to the police voluntarily told another person about having witnessed the shooting. Defendant was a citizen informant who went to the police, not to seek personal advantage, but because he thought it was the right thing to do. Gustafson v. State, 854 P.2d 751 (Alaska Ct. App. 1993).

Sufficient corroboration. —

Information from the informant was sufficiently corroborated by the police officer’s own observations to establish probable cause for arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Police’s personal observations. —

Where the sworn testimony of a police officer based upon the police officer’s personal observations and without reliance upon hearsay testimony gave probable cause to believe that contraband would be found on certain premises, the search warrant was properly issued for a search of the premises. State v. Beckley, 527 P.2d 33 (Alaska 1974).

Police officer’s knowledge of a suspect’s reputation was a “practicable consideration of everyday life” upon which a magistrate may properly rely. Kristich v. State, 550 P.2d 796 (Alaska 1976).

Sufficient probable cause established. —

Where the hearsay relied upon by an affiant in his affidavit for a search warrant was based on the information of an identified informant, and that information was acquired by the informant’s own observation, and furthermore, since the independent discovery at the time of defendant’s arrest of a handgun possessing a serial number matching the serial number of a stolen handgun tended to corroborate the informant’s story, there was a substantial basis for crediting the hearsay. Therefore the affidavit established sufficient probable cause for the issuance of a search warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

An affidavit supporting the issuance of a search warrant was sufficient where there was a substantial basis for crediting the observations of the informant, which were related in the affidavit. Jackson v. State, 509 P.2d 278 (Alaska 1973).

Issuance of warrant upheld. —

Judge was correct in sustaining the issuance of the electronic warrant by the magistrate, who not only heard the informant testify in person but had the opportunity to observe her demeanor. Hodsdon v. State, 698 P.2d 1224 (Alaska Ct. App. 1985).

Trial court properly denied defendant's motion to quash search warrants because probable cause to search a residence was linked to the IP address, not to a particular person, and the search warrant affidavit explicitly stated that the seizure of evidence from the residence would assist in the identification of the individuals involved; the affidavit thoroughly explained a detective's investigation. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Warrant issued in bush community. —

The showing necessary for issuance of a proper search warrant should not be relaxed where the warrant is issued in a bush community. Milne v. State, 607 P.2d 360 (Alaska 1980).

Anticipatory search warrants. —

An anticipatory search warrant is one which is based upon an affidavit showing probable cause that at some future time — but not presently — certain evidence will be at the location set forth in the warrant. Such warrants are constitutionally permissible and not invalid for lack of present probable cause, and they are not precluded by the statutory authority of AS 12.35.020 (3), which requires only reasonable belief of possession of the item for issuance of the warrant, without specifying that possession must be contemporaneous with the issuance, as distinct from the execution, of the warrant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

For an anticipatory warrant to be valid, there must be probable cause to believe that the items to be seized will be at the place to be searched at the time the warrant is executed, or in other words, that the warrant will not be prematurely executed. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In anticipatory warrant situations, the magistrate should insert a direction in the search warrant making execution contingent on the happening of an event which evidences probable cause that the item to be seized is in the place to be searched, rather than directing that the warrant be executed immediately or forthwith. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Just as anticipatory warrants based on probable cause are constitutionally permissible as long as the evidence creates a substantial probability that the seizable property will be on the premises when searched, such a warrant may be issued where positivity as required by Cr. R. 37(a)(3)(iv) is the standard. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Search warrant for defendant’s residence complied with traditional requirements for anticipatory warrants, as well as with the specific requirements adopted by the Alaska supreme court. State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983).

Distinction between valid anticipatory warrant and premature warrant. —

See State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983).

Nighttime searches. —

A nighttime search is a more extreme intrusion than one conducted in the daytime and under Cr. R. 37(a)(3)(iv), providing that warrants be served between 7:00 a.m. and 10:00 p.m. unless the affiant is positive the property is at the place to be searched; the householder is entitled to the assurance that the judge issuing the warrant has decided that the facts presented in the affidavit justify a nighttime search. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In approaching questions of whether a warrant should be issued for a search after 10:00 p.m., the decision of the judicial officer who has issued the warrant is to be given great deference and the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The language in Cr. R. 37(a)(3)(iv) that a search warrant shall not be served after 10:00 p.m. unless “an affiant is positive that the property is on the person or in the place to be searched” must be construed to equate “positive” with being reasonably certain. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

The requirement of positivity expressed in Cr. R. 37(a)(3)(iv) is met where the affidavit is explicit and detailed, the ultimate source of the information was said to be one of the persons to whom the warrant was directed and the informant who conveyed it was said to be reliable, and further, the circumstances concerning the shipment of the package which was the subject of the warrant were detailed and suspicious, and corroborated the information conveyed by the informant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

An explicit statement of positivity is not required by Cr. R. 37(a)(3)(iv), which requires that an affiant be positive that the items sought will be in the place specified when a warrant is to be served after 10:00 p.m. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Constitutional requirement of oath held met. —

See Milne v. State, 607 P.2d 360 (Alaska 1980).

Affidavit insufficient. —

Affidavit in support of search warrant did not provide sufficient information to enable a magistrate to independently determine probable cause under either current or former federal law where there was nothing in the affidavit establishing the informant’s credibility or giving the magistrate an independent basis for evaluating the informant’s truthfulness, and there was nothing in the affidavit indicating that an independent investigation was conducted to corroborate the accuracy of the informant’s contention that defendant was a cocaine dealer. Jones v. State, 681 P.2d 364 (Alaska Ct. App. 1984), aff'd, 706 P.2d 317 (Alaska 1985).

It is imperative under the Alaska Constitution that a magistrate be presented with adequate supporting facts so that he can independently test a confidential informant’s basis of knowledge and veracity; where an affidavit did not properly establish the informant’s veracity, the warrant was improperly issued and the fruits of the search had to be suppressed. State v. Jones, 706 P.2d 317 (Alaska 1985).

B.Probable Cause

Search for subject of arrest warrant. —

The 4th amendment of the United States Constitution and this provision require probable cause to justify entering a residence to search for the subject of the arrest warrant. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

Probable cause alone does not justify a warrantless search and seizure of evidence, since absent exigent circumstances a search warrant must first be obtained from an impartial judicial officer. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Warrantless search of package in plain view. —

Under the Fourth Amendment to the United States Constitution police may not open a package without a warrant under the plain view theory based merely on probable cause. The police are required to have more than probable cause to inspect the contents of the package; the officer can search the package only when the information which the officer has rises to a state of certitude, rather than mere prediction. To the extent that Reeves v. State , 599 P.2d 727 (1979) authorizes the police to search a closed container without a warrant based on probable cause it is not consistent with federal law. Newhall v. State, 843 P.2d 1254 (Alaska Ct. App. 1992).

“Probable cause” is a concept which is not capable of precise definition, since it must cover a wide range of factual settings. Keller v. State, 543 P.2d 1211 (Alaska 1975).

It is not certainty but rather probable cause which is required to justify a plain view seizure. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Probability, not proof, is the standard for probable cause. Kristich v. State, 550 P.2d 796 (Alaska 1976).

When probable cause exists. —

Probable cause exists if the facts and circumstances known to the officer would warrant a prudent man in believing that an offense had been or was being committed. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Probable cause is made out when reliable information is set forth in sufficient detail to warrant a reasonably prudent man in believing that a criminal offense has been or was being committed. Harrelson v. State, 516 P.2d 390 (Alaska 1973).

For probable cause to exist, the facts and circumstances within the officers’ knowledge must be sufficient in themselves to warrant a man of reasonable caution in believing that a crime has been or is being committed. Chilton v. State, 611 P.2d 53 (Alaska 1980).

More than good faith on the part of the officer is required for probable cause. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Probable cause exists where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Keller v. State, 543 P.2d 1211 (Alaska 1975); Cruse v. State, 584 P.2d 1141 (Alaska 1978); Pistro v. State, 590 P.2d 884 (Alaska 1979).

A police officer is usually authorized to arrest without a warrant if he has probable cause to believe a felony has been committed and probable cause to believe that the person to be arrested is the one who committed it. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

The standard for determining whether probable cause existed is whether, before making an arrest, a police officer is aware of facts and circumstances which are sufficient in themselves to warrant a prudent person in believing that an offense has been or is being committed. Skuse v. State, 714 P.2d 368 (Alaska Ct. App. 1986).

Probable cause cannot be established solely on the basis of a good faith belief on the part of the officer that there is probable cause to arrest. In order to establish probable cause, there must exist facts and circumstances known to the officer which would warrant a prudent person in believing that an offense has been or is being committed. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

A police officer with a reasonable suspicion that imminent public danger exists or that serious harm that has recently occurred was caused by a particular person may stop that person. Ebona v. State, 577 P.2d 698 (Alaska 1978).

The presence of the pistol and articles of clothing that looked like new merchandise, together with the circumstances of the car having been at the burglarized building shortly after midnight and having been driven away without headlights on, would be enough to warrant a prudent man in believing that a felony had been committed. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

While defendant’s presence with other suspect at the airport, standing alone, would not have justified defendant’s arrest no matter how strong the evidence against the other suspect, it does not follow that the evidence against the other suspect was irrelevant to a finding of probable cause to arrest defendant. Knowledge that two men had participated in the killing of the victim, that defendant generally matched the description of one of those men and that the other suspect was probably the other, and that defendant and the other suspect were in each other’s company at the Fairbanks airport approximately eight hours after the killing, planning to leave the state, established probable cause to arrest defendant as a matter of law. State v. Burdine, 698 P.2d 1216 (Alaska Ct. App. 1985).

There was a sufficient nexus between defendant’s residence and the drug transactions in question to justify the magistrate in issuing a warrant authorizing a search of that residence. Stuart v. State, 698 P.2d 1218 (Alaska Ct. App. 1985).

Where the sole basis for the officers’ departure from the public way was that they heard voices apparently coming from the rear of certain apartments, an area where they had previously accosted individuals smoking marijuana, and there was nothing in the record to suggest that the officers had reason to believe, either from the voices or otherwise, that such illegal activity was occurring on that particular occasion, this information alone did not rise to the level of probable cause. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Facts and circumstances established probable cause to make the arrests. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Although the various factors, if taken individually, were as readily consistent with innocence as guilt, the factors did not occur individually or in isolation from each other and the aggregate weight was fully sufficient to meet the established standard of probable cause. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Court might properly issue a search warrant if the state establishes probable cause to believe that the marijuana is possessed for commercial purposes, or that the amount of marijuana is in excess of the permitted quantity. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Trial court properly denied defendant's suppression motion based on the breadth of a search warrant because his rights under the Fourth Amendment and Alaska Constitution were preserved; there was probable cause to search computers and digital storage devices at a residence because aside from images and videos of child pornography, the only other evidence the police seized from defendant's devices were items the warrants separately authorized the police to search for and seize. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019) (memorandum decision).

The state bears the burden of proving probable cause by a preponderance of the evidence. Reeves v. State, 599 P.2d 727 (Alaska 1979) (memorandum decision).

When probable cause does not exist. —

Evidence that a person possesses an unspecified quantity of marijuana in their home does not, standing alone, establish probable cause to believe that the person is breaking the law; the search and seizure provision of Alaska Const. art. I, § 14 prohibits the issuance of a search warrant. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Search of defendant's laptop computer violated the Fourth Amendment, and therefore the evidence against her obtained as a result of that search should have been suppressed, because the search warrant did not show that the officers had probable cause to believe that documents pertaining to the business and finances of defendant's landlord would be found on defendant's laptop, which was located in defendant's apartment. The search warrant also failed to limit or restrict the officers' search of defendant's laptop so as to reasonably ensure that they confined their search to those files and folders that were likely to contain evidence concerning the landlord. Pohland v. State, — P.3d — (Alaska Ct. App. Nov. 23, 2018), superseded, modified, 436 P.3d 1093 (Alaska Ct. App. 2019), op. withdrawn, superseded, — P.3d — (Alaska Ct. App. 2019).

Probable cause not established in warrant application. —

Defendant was entitled to suppress evidence of marijuana plants seized from his home pursuant to a search warrant, because the state’s warrant application failed to establish probable cause to believe that defendant’s possession of marijuana was illegal. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Evidence of informant’s veracity is factor for determining probable cause. —

Evidence presented against the defendants was obtained by an illegal search and seizure which violated their rights under the fourth amendment of the United States Constitution and this section where the informant was from the criminal milieu and there were insufficient indicators of his veracity to support a finding of probable cause for issuance of a warrant. Where no information is presented to a magistrate from which he can make a detached and independent determination of probable cause, a warrant cannot be deemed valid. Clark v. State, 704 P.2d 799 (Alaska Ct. App. 1985).

Information presented to a district court failed to establish probable cause for the issuance of a warrant authorizing the search of appellant’s resident where the main incriminating information was supplied by two informants of unproven credibility. Wilson v. State, 82 P.3d 783 (Alaska Ct. App. 2003).

Police stop based on REDDI call upheld. —

Driver’s license was properly revoked where the officer had reasonable suspicion to stop a driver based upon a Report Every Drunk Driver Immediately report; although the truck described did not match the driver’s truck exactly, the trooper was reasonable in believing that the truck was the one identified by the REDDI caller. Saltz v. Dep't of Admin., Div. of Motor Vehicles, 126 P.3d 133 (Alaska 2005).

Probable cause to search particular place. —

In the absence of any eye witnesses who saw the items sought in the place to be searched, a nexus can be established based on other factors, including (1) the type of crime involved; (2) the nature of the items sought; (3) the extent of the suspect’s opportunity to conceal the items; and, (4) normal inferences as to where a criminal would likely hide the items sought. State v. Conway, 711 P.2d 555 (Alaska Ct. App. 1985).

Probable cause to stop vehicle. —

Traffic stop of a driver of an ATV which was observed by an officer to have crossed the road without stopping was proper. Accordingly, there was no basis to suppress evidence of driver intoxication found during the stop which gave rise to a charge of, and conviction for, DUI. Conway v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Independent judicial scrutiny protects against searches not justified by a prior determination of probable cause. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Decision of issuing judge given deference. —

As to whether probable cause existed for the issuance of the search warrant, the decision of the issuing judge is to be given great deference, and the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Ellsworth v. State, 582 P.2d 636 (Alaska 1978).

In determining whether supportive evidence of a crime exists sufficient to justify the issuance of search warrants, the question to be asked is whether the issuing judge was provided sufficient evidence to make an independent finding of probable cause for the issuance of the warrants. It has been suggested that in making this determination on appeal “great deference” be given the findings of the issuing judge, that he not be “confined by niggardly limitations,” and that “probability” rather than proof be the standard for probable cause. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Probable cause to search based on person’s voluntary presence at site. —

Where the magistrate found probable cause to believe that the residence named in the application for a warrant was being used as a ‘crack house’, the probable cause for the search of two defendants who arrived at the house during the execution of the warrant depended on their voluntary presence at the site of an ongoing criminal enterprise. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

Staleness of supporting information. —

Defendant's claim that the information used to support a search warrant was too stale was rejected given the serial nature of the sexual assault charges. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Interior of containers. —

Probable cause gained after the examination of the interior of a container cannot be used in retrospect to justify that seizure and examination. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Evidence of additional crimes. —

The literal language of the United States and Alaska Constitutions requires only that the warrant establish probable cause to search and describe the place to be searched and the thing to be seized; therefore, where the warrant established probable cause to search defendant’s residence and vehicle for the assault rifle, ammunition, and other evidence of his probation violation, the fact that the magistrate and the police may have believed that these items were also evidence of defendant’s game violation under AS 16.30.010 was not controlling. Lewis v. State, 9 P.3d 1028 (Alaska Ct. App. 2000).

C.Particularity of Description

“Particular description” requirement. —

The “particular description” requirement protects against the evil of the general warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The requirement that warrants particularly describe the things to be seized was designed to prevent general exploratory searches of a person’s belongings. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The object of the clause of the 4th amendment requiring particularity in regard to the article to be seized under a search warrant is to prevent overbroad generalized searches and seizures. Bell v. State, 482 P.2d 854 (Alaska 1971).

The requirement that warrants particularly describe the items which are to be seized renders general searches under them impossible and prevents the seizure, with several specific exceptions, of one thing under a warrant describing another. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Characterization of property as having been stolen at given time or from given place will not normally suffice to satisfy the requirement of particularity, since such characterization does not enhance an officer’s ability to distinguish between property unlawfully held that is subject to seizure and property of the same general class that is lawfully held and not subject to seizure. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Law enforcement officers and judges should exercise great care in drafting and ratifying a search warrant's description of the things to be searched, particularly searches of digital computing and storage devices, where the likelihood of the seizure of innocent articles by mistake is the most substantial. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Requirement not rigidly construed. —

The requirement of particularity must not be rigidly construed to require unreasonable or unnecessary detail in the description of property to be seized. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Where the nature of the property or the facts involved in a specific case preclude detailed description, unrealistic standards cannot properly be applied; the amount of particularity that is required must be determined with practicality and common sense. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Warrants authorizing the police to search any and all persons present at the time of the serving of the warrant are not per se unconstitutional; such a warrant is supportable if the warrant application provides probable cause to believe that all persons present upon execution of the warrant would have drugs or drug paraphernalia on their persons. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

An arctic entry-way (an enclosed vestibule or small porch attached to the residence with its own door) was part of the premises of the dwelling for purposes of searching persons ‘present on the premises’ at the time of the execution of a search warrant. Davis v. State, 938 P.2d 1076 (Alaska Ct. App. 1997).

General search not countenanced. —

The supreme court will not countenance the use of an otherwise valid warrant for the purpose of conducting a generalized search for incriminating evidence, nor will it look with favor upon any search undertaken with the undeclared intention of seizing property which has not been described in the warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973); Klenke v. State, 581 P.2d 1119 (Alaska 1978).

Generic reference to jewelry. —

Warrant authorizing seizure of “jewelry stolen from 100 E. Fireweed Lane # B on February 6, 1980” was unduly broad and failed to comport with the constitutional requirement of particularity. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Generic reference to jewelry in the warrant did not constitute a description that was reasonably specific where an itemized list detailing the property stolen in the burglary had been prepared and was available when the warrant was applied for and issued, and there were no circumstances excusing the need for a particular description. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Incorporation of extrinsic documents by reference. —

Extrinsic documents may not be incorporated informally into the body of a warrant by implication. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Although the text of a supporting affidavit or an itemized inventory of property may properly be incorporated by reference in a warrant, incorporation of an extrinsic document must be formally reflected in the warrant; the warrant must, on its face, refer to the extrinsic document that it purports to incorporate, and the intent to incorporate the document must be stated. In addition, a copy of the document incorporated normally must be attached to the warrant, or, at the very least, the warrant must direct that the extrinsic document accompany it at the time of execution. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Sufficient description. —

The requirement that places to be searched be particularly described is ordinarily said to be met if the description is such that the officer with the search warrant can, with reasonable effort, ascertain and identify the place intended. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Technical accuracy in describing the place to be searched is not required, and if there is no reasonable probability that the wrong premises will be searched, the description is sufficient. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Warrant which anticipated a search of whatever place the package in question was taken to and limited the search to a search for that package was not a general warrant and was not invalid. State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983).

Where warrant authorized a search of whatever person picked up the package in question or the premises of whatever place the package was taken to, the police followed the package to a residence but could not tell whether the package entered the residence or remained in the car, and subsequently the police legitimately stopped the car and the package legitimately came into police hands, under these circumstances the police could open the package. State v. Morris, 668 P.2d 857 (Alaska Ct. App. 1983).

Authorization to search for knives was not unconstitutionally broad where the victims described two different knives to the investigators, and even if the warrant was overly broad, most of the items seized from the house were not admitted and were of marginal relevance. Dorsey v. State, — P.3d — (Alaska Ct. App. May 25, 2016) (memorandum decision).

Warrant for participant monitoring. —

There is no requirement that warrants issued for participant monitoring of conversations contain particularized descriptions of location in which monitoring will occur. Jones v. State, 646 P.2d 243 (Alaska Ct. App. 1982).

Defendant was not entitled to suppress a recorded phone conversation between defendant and an alleged sexual assault victim when the police obtained a warrant to record a phone conversation between the victim and defendant, but the warrant inadvertently stated that the conversation would take place between the victim and a real and different person than defendant because there was no reasonable probability the wrong conversation was to be recorded. Cleveland v. State, 469 P.3d 1215 (Alaska Ct. App. 2020).

A general warrant may not be rehabilitated by reference to subsequent police conduct. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

Caution and self-restraint on the part of officers executing a search warrant that is unreasonably vague in its description of property to be seized cannot rehabilitate the warrant’s failure to describe property with the necessary amount of particularity. Namen v. State, 665 P.2d 557 (Alaska Ct. App. 1983).

The burden of proof on questions pertaining to the sufficiency of a warrant description is on the challenger. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Federal courts have carved out numerous exceptions to the general rule requiring particularity. Bell v. State, 482 P.2d 854 (Alaska 1971).

Evidence not described in warrant. —

An officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant. Bell v. State, 482 P.2d 854 (Alaska 1971); State v. Davenport, 510 P.2d 78 (Alaska 1973); Anderson v. State, 555 P.2d 251 (Alaska 1976).

There is no logical or constitutional reason, given a lawful entry pursuant to a search warrant by an officer who is conducting a good faith search, why the officer conducting the search should be prohibited from seizing evidence not described in the search warrant where the searching officer has a reasonable basis for drawing a connection between the observed evidentiary objects and the crime which formed the basis of the search warrant. Bell v. State, 482 P.2d 854 (Alaska 1971).

The supreme court has upheld the seizure of an item that had not been described in the search warrant, but which the executing officer had probable cause to believe was related to another crime being conducted in his presence. Thus, the items seized need not necessarily be connected to the crime which served as a basis for the search warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

But search must be conducted in good faith. —

Essential to the validity of the seizure of items which were not described in the search warrant is that the search which leads to the discovery of the unlisted material be conducted in good faith. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The supreme court cannot agree that simply because the police had reason to believe that they might find certain items not described in the search warrant in the course of their search, the search was therefore tainted with bad faith where the underlying basis for the intrusion into defendant’s home was legitimate, and the search was conducted in a lawful manner. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Officers must have probable cause to believe that the article not named in the warrant, but found during the search, will aid in a particular conviction for an offense. Probable cause under these circumstances exists only when the information the officers possess immediately following discovery is sufficient to warrant in a reasonable man of reasonable caution the belief that an offense has been or is being committed. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When an officer has probable cause to believe that objects he discovers in the course of a valid search conducted under a valid warrant are the fruits of a particular theft, that officer may seize those items even though they are neither listed on the search warrant nor related to the crime which served as the basis for the warrant. State v. Davenport, 510 P.2d 78 (Alaska 1973).

Probable cause to believe property stolen. —

The requirement that the incriminating nature of property be immediately apparent, so as to allow its seizure under the plain view exception to the warrant requirement, means only that the officer must have probable cause to believe the property is stolen, so as to be subject to seizure. Where the circumstances gave rise to a reasonable inference that the officers had stumbled upon stolen goods, the officers had probable cause to believe that the property was stolen. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Nexus between items to be seized and place to be searched. —

Searches have been upheld even though the nexus between the items to be seized and the place to be searched was based not on direct observation, as in the usual search and seizure case, but on other factors, including the type of crime, the nature of the items enumerated in the search warrant, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide the property sought. Metler v. State, 581 P.2d 669 (Alaska 1978).

It is not enough that the evidence seized was in plain view. There must, of course, be a nexus, automatically provided in the case of fruits, instrumentalities or contraband, between the item to be seized and criminal behavior. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Defendant's rights under the Fourth Amendment and Alaska Constitution were preserved because although the search warrants did not prescribe an explicit search protocol, the detectives employed a search tool that was designed specifically to identify child pornography; the search warrant was not specific to defendant but was based on probable cause to believe that someone was downloading child pornography at the residence associated with the IP address. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Trial court properly denied defendant's suppression motion based on the breadth of a search warrant because there was no indication detectives seized items other than defendant's computers and digital storage devices; even if the detectives lacked probable cause to seize items like calendars, ledgers, and date books, that would not invalidate the entire warrant but rather, it would result solely in suppression of those items. O'Connor v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2019).

Evidence which is in open view is not the product of a search, and the seizure of such evidence after a lawful entry violates no constitutional right of privacy. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Avery v. State, 514 P.2d 637 (Alaska 1973).

An officer may seize evidence which is legitimately in his plain sight. It is not necessary that the contraband be positively identified before it is seized. Daygee v. State, 514 P.2d 1159 (Alaska 1973); Bell v. State, 519 P.2d 804 (Alaska 1974).

It is no search to observe that which is in the plain view of an officer who is rightfully in a position to have that view. That an officer’s view is aided by a flashlight is irrelevant. The flashlight beam merely illuminated that which would have been visible in the light of day. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Clear and convincing evidence of the nature and presence of contraband within a package is sufficient to sustain a “plain view” seizure. Bell v. State, 519 P.2d 804 (Alaska 1974).

Under the “plain view” doctrine, certain evidence may be seized without the procuring of a warrant. Police officers need not turn their backs on evidence, instrumentalities, or fruits of a crime which are inadvertently discovered. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Opening clear glass vial containing white powder (cocaine) and testing the substance contained therein was justified under the “plain view” doctrine. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Plain view of evidence of a crime merely furnishes probable cause to believe that a crime has been committed. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Doctrine stated. —

One of the recognized exceptions to the warrant requirement is the plain view doctrine, which allows the warrantless seizure of evidence observed in plain view by a police officer from a place where he or she has a legal right to be. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Application of plain view doctrine. —

In its purest application the plain view doctrine does not deal with a search in a constitutional sense but simply sanctions the admission of evidence consisting solely of testimony as to the observations of an officer legally in the position from which the observations were made. However, the more difficult cases deal with the permissibility of official action in seizing physical evidence observed in “plain view.” Reeves v. State, 599 P.2d 727 (Alaska 1979).

Requirements for valid “plain view” seizure. —

Three basic requirements for a valid “plain view” seizure of evidence are: (1) The initial intrusion which afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been immediately apparent. Reeves v. State, 599 P.2d 727 (Alaska 1979).

The rationale of the plain view exception to the warrant requirement is that a plain view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. State v. Davenport, 510 P.2d 78 (Alaska 1973).

The plain view doctrine serves certain defensible purposes. State v. Davenport, 510 P.2d 78 (Alaska 1973).

But nexus must exist. —

It is not enough that the objects seized in the course of a search simply be in “plain view.” There must be some nexus — automatically provided in the case of fruits, instrumentalities and contraband — between the item seized and criminal behavior. State v. Davenport, 510 P.2d 78 (Alaska 1973).

When “plain view” exception applies. —

The “plain view” exception applies where an officer lawfully executing a search warrant, or otherwise engaged in a lawful intrusion, inadvertently comes across evidence whose incriminating nature is immediately apparent. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The “plain view” doctrine is a court-created exception to the warrant requirement. Its basis is in logic. Anderson v. State, 555 P.2d 251 (Alaska 1976).

The words “plain view” are construed in their most literal sense. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Prerequisites for valid plain view seizure. —

State v. Spietz, 531 P.2d 521 (Alaska 1975).

The extension of the original justification for an intrusion is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Anderson v. State, 555 P.2d 251 (Alaska 1976).

The requirement that the incriminating nature of property be “immediately apparent,” so as to allow its seizure under the “plain view” exception to the warrant requirement means only that the officer must have probable cause to believe the property is stolen, so as to be subject to seizure. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

The supreme court rejected the argument that the necessity of assembling the property and tracing serial numbers, as was done to determine whether particular items of property had, in fact, been reported stolen, belied the assertion that the incriminating nature of the property was “immediately apparent,” so as to be within “plain view” and subject to seizure. Klenke v. State, 581 P.2d 1119 (Alaska 1978).

Passage of time between initial observations and entry has not been considered a significant factor. Davenport v. State, 568 P.2d 939 (Alaska 1977).

The incriminating nature of the item to be seized must be immediately apparent. Deal v. State, 626 P.2d 1073 (Alaska 1980).

What state must prove. —

When asserting the plain view exception, the state must prove not only that the evidence seized was in fact in plain view but also that the initial intrusion which afforded the view was lawful, that the discovery of the evidence was inadvertent, and that the incriminating nature of the evidence was immediately apparent. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Inadvertence requirement. —

While inadvertence is a precondition to a valid seizure of evidence under the plain view exception to the requirement that no search or seizure can be made without a warrant, the kind of plain view to which the inadvertence requirement applies only takes place after there has been an initial search or intrusion. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

The inadvertence requirement of the plain view doctrine has never been thought to apply where the observation precedes the intrusion. It does not prevent police officers who are lawfully positioned in a public area from intentionally looking for suspects or incriminating evidence freely visible within the confines of a constitutionally protected area. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Where a motel manager, after checkout time, tried to contact defendant by phoning his room and by knocking at his door; there was no response; and the manager then opened the door to his room in order to determine whether he had vacated, her authority to do so, at the time she would normally have done so, in accordance with her customary procedure, was not altered by the presence of the police, and, assuming the police were in a location which did not violate defendant’s rights before the door was opened, the manager’s opening of the door for a legitimate private purpose did not constitute an illegal search merely because the police were present. Sumdum v. State, 612 P.2d 1018 (Alaska 1980).

Slides stored on shelf. —

Seizure of defendant’s slides stored on a shelf in his home, could not be sustained as within the “plain view” doctrine. The incriminating nature of the slides was not immediately apparent to the officers executing the search warrant, which authorized a search of defendant’s home for marijuana and related paraphernalia. Their action, in lifting the slides to the light to examine their contents, constituted a search of constitutional dimensions. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Officers entered home on visit. —

Where the initial entry into the mobile home of a probationer was justifiable as a visit, under the law prior to the decision in Roman v. State , 570 P.2d 1235 (Alaska 1977), once the officers were inside, their discovery of cocaine in plain view furnished the requisite probable cause to seize the contraband and to search other areas of the trailer, thus leading to the discovery and seizure of license plates from a stolen car, and such evidence consequently discovered was properly admitted. Soroka v. State, 598 P.2d 69 (Alaska 1979).

Entry into residence not justified. —

Plain view alone will not justify an entry into a private residence because plain view is not in itself an exception to the warrant requirement. State v. Spietz, 531 P.2d 521 (Alaska 1975).

Plain view alone did not justify warrantless entry through doorway into defendant’s house. —

State v. Spietz, 531 P.2d 521 (Alaska 1975).

Observation from driveway. —

Where the driveway involved was a normal means of ingress and egress impliedly open to public use by one desiring to speak to occupants of the garage, or to park off the street while visiting occupants of the house, there was no invasion of rights to privacy when the police officer moved up the driveway, and the officer could constitutionally observe what was in plain view in the garage. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Search of visitor’s purse. —

Where in an investigation for armed robbery the police searched an apartment pursuant to a warrant and in the course of such search, opened a visitor’s purse, the police were justified in their action since they did not know whether the purse belonged to a permanent resident of the apartment or a visitor, no one spoke out claiming ownership and that it should be exempted from the warrant, and the police had no duty to solicit such a claim. Carman v. State, 602 P.2d 1255 (Alaska 1979); Waters v. State, 924 P.2d 437 (Alaska Ct. App. 1996).

Items in car’s interior. —

Items in plain view within a car’s interior can be seized without a warrant if the initial stopping of the vehicle was justified. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

III.Exceptions
A.In General

Search without warrant and apart from arrest. —

Police officers are occasionally faced with sudden and unexpected situations in which they may reasonably conduct a search without a search warrant and apart from a contemporaneous arrest, as in the case of a moving vehicle. Ellison v. State, 383 P.2d 716 (Alaska 1963).

To invoke the emergency aid doctrine, it is enough that the police have good reason to believe there might be, as opposed to knowledge that there is, someone injured in the premises. State v. Gibson, 267 P.3d 645 (Alaska 2012).

Need for official action must be compelling. —

The narrowly-defined classes of cases which justify invasion of privacy without a warrant are those instances where there is a “compelling need for official action and no time to secure a warrant.” Schultz v. State, 593 P.2d 640 (Alaska 1979).

In a case where a university police officer was erroneously informed by dispatch when sunset had occurred, when the officer attempted to stop defendant for operating his vehicle in violation of 13 AAC 04.010, which requires drivers to have their headlights illuminated 30 minutes after sunset, if the officer believed that the sun had set more than 30 minutes before he attempted to stop defendant, that belief was unreasonable; therefore, the officer’s actions in directing defendant to stop constituted an illegal seizure, and the exclusionary rule barred evidence of defendant’s violations. State v. Campbell, 198 P.3d 1170 (Alaska Ct. App. 2008).

Exceptions to warrant requirement. —

The following categories of exceptions to the warrant requirement can be identified: (1) A search of abandoned property; (2) a search in hot pursuit of a fleeing felon; (3) a search, with probable cause, to avoid destruction of a known seizable item; (4) a search of a movable vehicle; (5) an “inventory” search; (6) a search pursuant to voluntary consent; (7) a search in the rendition of “emergency aid”; (8) a “stop and frisk” search; (9) a search incident to an arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Under this constitutional guarantee, a search warrant must be issued before a person may be searched. There are exceptions to the rule, but they are limited to cases where the exigencies of a situation make it imperative that one’s right to privacy be invaded without first obtaining a search warrant. The exception most often made is where a warrantless search is made incident to a lawful arrest. Bargas v. State, 489 P.2d 130 (Alaska 1971).

Warrantless search of premises where warrant was being obtained independently. —

Motion to suppress marijuana plants seized from defendant’s home was properly denied. Even if officers’ initial entry into the residence and their initial search of the residence were unlawful, the entry and search occurred while an investigator was in the process of applying for a warrant to search the residence; the authority granted by the warrant was an “independent source.” Starkey v. State, 272 P.3d 347 (Alaska Ct. App. 2012).

Scope of search conducted pursuant to exception. —

Inherent in the concept of “narrowly defined exceptions” to the warrant requirement is the requirement that a search conducted pursuant to such an exception must be no broader or more intrusive than necessary to fairly effect the governmental purpose which serves as its justification. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Each exception to the warrant requirement must be defined in terms of the reasonable and justifiable governmental purpose which it furthers. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Burden of proving conduct falls within exception. —

The state must establish by a preponderance of the evidence that search and seizure conduct falls within an exception to the warrant requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975).

The burden of proof is on the state to prove by a preponderance of the evidence that the exigencies of the situation make conduct of the search without a warrant imperative. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

The burden is upon police to demonstrate the compelling reasons which justified the search. Ellison v. State, 383 P.2d 716 (Alaska 1963).

When the state asserts any exception to the warrant requirement, the state has the burden of proof. Frink v. State, 597 P.2d 154 (Alaska 1979).

Once the constitutionality of the observation has been challenged through a motion to suppress, the burden is on the state to prove by a preponderance of the evidence that the officer was in a place where he had a right to be or was acting pursuant to an exception to the warrant requirement. Chilton v. State, 611 P.2d 53 (Alaska 1980).

Validation of warrantless intrusion. —

Circumstances relevant to the determination of whether a warrantless intrusion can be validated under the search warrant requirement to prevent the imminent destruction of evidence include: The degree of urgency involved; the amount of time necessary to secure a warrant; the possibility of danger to police officers guarding the site while a warrant is sought; information indicating that the possessors of the evidence are aware the police are on their trail; and the ready destructibility of the evidence. Finch v. State, 592 P.2d 1196 (Alaska 1979).

Before a warrantless intrusion into a room can be validated under the exception to the warrant requirement to prevent the imminent destruction of evidence, there must be probable cause to believe that evidence is present, and the officers must reasonably conclude, from the surrounding circumstances and the information at hand, that the evidence will be destroyed or removed before a search warrant can be obtained. Finch v. State, 592 P.2d 1196 (Alaska 1979).

Roadblocks can properly be established when a serious crime has been committed for purposes of investigation or apprehension of a suspect where exigent circumstances exist and where the roadblock is reasonable in light of the particular circumstances of the case. Lacy v. State, 608 P.2d 19 (Alaska 1980).

Warrantless entries into a house are deemed per se unreasonable and may be tolerated only if they fall within one of the well-established and specifically defined exceptions to the warrant requirement. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Fishing vessel hold. —

Where a fishing vessel was tied to a fish processing vessel and in the process of being unloaded, the hold of the fishing vessel, which was in plain view of an inspector who was on the fishing vessel with consent, was not protected from search. Dye v. State, 650 P.2d 418 (Alaska Ct. App. 1982), hearing denied, 666 P.2d 48 (Alaska 1983).

Fish and game search with consent. —

The notice requirement of AS 16.05.180 , authorizing warrantless searches when investigating violations of fish and game laws, did not apply to a situation where peace officers searched property after having obtained the property owner’s consent. Mackelwich v. State, 950 P.2d 152 (Alaska Ct. App. 1997).

Driving while intoxicated. —

AS 12.25.033 , which permits a police officer to arrest a defendant for violation of AS 28.35.030 on probable cause but without a warrant, does not violate this section and the corresponding provisions of the federal constitution because these constitutional provisions are not offended by warrantless searches or arrests based on exigent circumstances and the legislature has determined that exigent circumstances exist where there is probable cause to believe a suspect is driving while intoxicated. Proctor v. State, 643 P.2d 5 (Alaska Ct. App. 1982).

Field sobriety tests are not searches. —

While breath tests are generally considered searches for constitutional purposes, typical field sobriety tests, including the horizontal gaze nystagmus test, are not; therefore, police do not need probable cause sufficient for an arrest before requesting typical field sobriety tests. Galimba v. Municipality of Anchorage, 19 P.3d 609 (Alaska Ct. App. 2001).

Use of exclusionary rule as sanction. —

The invocation of the exclusionary rule as sanction against the resort by police to excessive force in making an arrest was held inappropriate. State v. Sundberg, 611 P.2d 44 (Alaska 1980).

Activities open to public observation. —

Where a box office manager was stealing cash from ticket sales and university police, without obtaining a warrant, installed a hidden video camera which recorded her in the act of theft, the videotape was not obtained in violation of the manager’s constitutional rights, because activities that are open to public observation are not generally protected. Cowles v. State, 23 P.3d 1168 (Alaska 2001), cert. denied, 534 U.S. 1131, 122 S. Ct. 1072, 151 L. Ed. 2d 974 (U.S. 2002).

Because the trooper was standing in a public vantage point (the deck or walkway directly adjacent to the apartment that was open to the public) when he looked through the apartment window, his observation of the methamphetamine supplies inside the apartment was obtained lawfully, and he did not violate Alaska Const. art. I, § 14’s guarantee against unreasonable searches. Martin v. State, 297 P.3d 896 (Alaska Ct. App. 2013), cert. denied, 574 U.S. 909, 135 S. Ct. 280, 190 L. Ed. 2d 206 (U.S. 2014).

Employee drug testing. —

Municipality’s policy subjecting police employees and firefighters to suspicionless substance abuse testing was, for the most part, constitutional, but random testing provision was unreasonable and thus unconstitutional. Anchorage Police Dep't Emples. Ass'n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001).

Standard for investigatory stop. —

Demonstrating reasonable suspicion for an investigative stop requires significantly less than the probable cause needed to enter a home; while the supreme court approved the use of the collective knowledge doctrine that approval allows an officer to rely upon information imputed from a dispatcher to meet the reasonable suspicion requirement for an investigative stop of a vehicle. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Initial encounter between a state trooper and defendant outside an airport did not constitute an investigative stop because the trooper approached defendant in a public place, and the trooper did not display any weapons during the encounter or block defendant from leaving the conversation; the mere recitation of the trooper's suspicion did not convert the stop into a seizure, especially since he told defendant several times that she did not have to speak with him. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

B.Abandoned Property

The protection of the 4th amendment does not extend to abandoned property. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Abandoned property is not subject to the warrant requirements of the search and seizure provisions. Lupro v. State, 603 P.2d 468 (Alaska 1979).

One relinquishes the right of privacy to property by abandoning it. As a result, the protections of the 4th amendment do not extend to abandoned property. State v. Salit, 613 P.2d 245 (Alaska 1980).

Intentional concealment is not an act of abandonment. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Any items of garbage placed in a receptacle outside the dwelling are abandoned. Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S. Ct. 603, 38 L. Ed. 2d 489 (U.S. 1973).

Trash placed in plain view for routine pickup. —

There was no reasonable expectation of privacy in trash placed in plain view at the end of a driveway for routine pickup, where it could be easily scavenged or accidentally removed. State v. Beltz, 160 P.3d 154 (Alaska Ct. App. 2007), aff'd, 221 P.3d 328 (Alaska 2009).

Seizure of a vehicle found lying upside down at the bottom of a steep embankment was valid under the abandoned property exception to the warrant requirement. Lupro v. State, 603 P.2d 468 (Alaska 1979).

Abandoned garment bag. —

Airline passenger’s denial of ownership of a garment bag at a time when the other passengers had departed the area justified the police officer in treating the bag as abandoned. State v. Salit, 613 P.2d 245 (Alaska 1980).

Evidence in abandonded bag was fruit of poisonous tree. —

Finding that search of a black bag was lawful was improper because evidence found in the black bag was fruit of earlier illegal pat-down search, and thus should have been suppressed; state’s contention that even if defendant had not been subjected to the illegal search he inevitably would have disclaimed ownership of the bag, and thus trooper inevitably would have been authorized to retrieve and search the bag as abandoned property, was rejected. Erickson v. State, 181 P.3d 1117 (Alaska Ct. App. 2008).

C.Hot Pursuit

Search of purse found in station wagon. —

In determining whether the search of a purse found in a station wagon fell within the hot pursuit of a fleeing felon exception, the supreme court held that the pertinent facts were: The commission of a grave offense; a clear showing of probable cause that the vehicle in question was the getaway car; a reasonable belief that the suspects were armed; a likelihood that the suspects would have fled if not speedily apprehended; and a peaceable entry. Gray v. State, 596 P.2d 1154 (Alaska 1979).

Stop based on broadcast description. —

Where driver fled traffic stop on foot, and the officer had a description of the driver broadcast, shortly after which two plainclothes officers found a person meeting the description in a store, the plainclothes officers’ investigatory stop, and subsequent arrest of the driver, was proper under the Coleman v. State , 553 P.2d 40 (Alaska 1976) standard. Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009).

D.Movable Vehicles

Police officer’s stop of vehicle. —

Given the recent occurrence of a serious felony, first-degree robbery, and given the information the store clerk had furnished about the robber’s escape on foot and the direction the robber was headed, police officer’s stop of the defendant’s car and its occupants to ask questions was both justified and minimally intrusive. When a person jumped out of the car and appeared to match the description of the robber, the officer was justified in further investigation, and the discovery that the car was stolen and the driver had been reported as a missing person justified the officer’s continuing investigative efforts. Beauvois v. State, 837 P.2d 1118 (Alaska Ct. App. 1992).

Where defendant was charged with possession of methamphetamine following a traffic stop, his motion to suppress was properly denied; the stop was not pretextual because defendant’s license plate was bent, and the plate number illegible. Way v. State, 100 P.3d 902 (Alaska Ct. App. 2004).

When defendant pulled away from the scene of a party, a trooper walked into the road to look at his license plate and waved at defendant; a reasonable person in defendant’s position would not have felt free to leave the scene, because doing so violates AS 28.35.182 . Therefore, a seizure occurred for purposes of Alaska Const. art. I, § 14. Majaev v. State, 223 P.3d 629 (Alaska 2010).

Warrantless search of movable vehicle. —

Movable vehicle search cases are based on a notion that warrantless seaches must be tolerated because vehicles and evidence contained in them might be removed before it is possible to obtain a search warrant. Thus, the movable vehicle exception may properly be considered to be a subcategory of the exception authorizing a search, with probable cause, to avoid destruction of a known seizable item. Clark v. State, 574 P.2d 1261 (Alaska 1978).

In order for a warrantless search of a vehicle to fit within the destructible evidence exception, the prosecution must establish two conditions: (1) There must be probable cause to believe that the vehicle contains evidence or contraband and (2) there must be exigent circumstances justifying conduct of the search without a warrant. Clark v. State, 574 P.2d 1261 (Alaska 1978).

The condition of existence of exigent circumstances is not automatically fulfilled merely because the object searched is an automobile. Clark v. State, 574 P.2d 1261 (Alaska 1978).

The presence of an exigent exception to the warrant requirement must be determined under the factual circumstances of the search rather than the abstract potential for mobility or destruction of the thing searched. Clark v. State, 574 P.2d 1261 (Alaska 1978).

Where a vehicle was parked in a public place, the search was for contraband, and the officers had grounds for believing that a known accomplice was at large who would be motivated to move the vehicle or take any evidence it contained, exigent circumstances sufficient to justify a warrantless search have been shown. Clark v. State, 574 P.2d 1261 (Alaska 1978).

Impoundment of vehicle. —

Because Anchorage Municipal Code, Anchorage, Alaska, Municipal Code § 09.28.026, authorizes the impoundment of vehicles without regard to whether the vehicle poses any public danger or inconvenience at the time it is seized, the ordinance cannot be justified under a community caretaker rationale. Even if the court tried to limit the scope of the ordinance to situations where impoundment of a vehicle was truly linked to a community caretaker function, the ordinance would still be fatally flawed because it lacks standardized, objectively ascertainable criteria for determining when to impound a vehicle. Taha v. State, 366 P.3d 544 (Alaska Ct. App. 2016).

The search must follow immediately after the suspects are removed from a vehicle and restrained and may not be delayed so to later search the vehicle at the police station. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

The police have the burden of proof in establishing they acted with dispatch in effecting the arrest and any search incident thereto. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Unattended, unsecured vehicle. —

Where an officer is aware that the operator of an unattended, unsecured vehicle will not be returning to the vehicle in the near future, his entry of that vehicle for the limited purpose of securing it is entirely justified. Indeed, where motivated by a good faith desire to protect the contents of the vehicle, such conduct is commendable. Deal v. State, 626 P.2d 1073 (Alaska 1980).

Valid motor vehicle stop disposed of related privacy claim. —

Where defendant, who was stopped and charged with a felony DUI after he was seen trying to start his snowmachine on a sidewalk, argued that a reasonable person would not expect that the traffic code applied to a sidewalk covered by a snow berm, and therefore, he had a reasonable expectation of privacy not to be contacted by the police, the right to privacy guaranteed by Alaska Const. art. 1, § 22 did not create a right to seek the exclusion of evidence that was separate and independent from the right to be free from unreasonable searches and seizures under this section; consequently, the ruling that defendant’s stop was valid under this section disposed of his privacy claim as well. Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

Argument of defendant, arrested for felony DUI when a trooper saw him trying to start a snowmachine on a sidewalk, that the trooper did not have probable cause to stop because the sidewalk was under a snow berm, was without merit, where officer directly observing a violation of a traffic code had probable cause for the traffic stop, saw defendant trying to start the stalled snowmachine on the sidewalk, and the snow was not so high as to make the sidewalk unidentifiable; the sidewalk remained a sidewalk for the purposes of 13 AAC 40.010(a)(33) and 13 AAC 40.010(a)(48). Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

No basis for detention after traffic stop. —

The record did not support the state’s arguments that defendant could be temporarily detained at the scene of the traffic stop, either because he was a witness to a crime or because he posed a potential threat to officer safety and, as a matter of law, defendant’s act of running into the street, in apparent violation of state and municipal law, cannot form the justification for his arrest and the search of his person. Castle v. State, 999 P.2d 169 (Alaska Ct. App. 2000).

For discussion of federal case law relating to the validity of automobile searches without a warrant, see Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Scope of search of vehicle. —

The search of a car incident to a valid arrest would only go to visible areas within easy reach of the suspect and would not permit the opening of closed spaces or opening of closed containers. The car should then be immobilized and stored pending further judicial process of search or release to the proper party. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Mandatory use of seatbelt. —

Alaska’s seatbelt law, AS 28.05.095(a) , does not infringe the rights of personal liberty, autonomy, and privacy guaranteed by this provision and Alaska Const. art. I, §§ 1 and 22, as the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

Search of containers found in vehicle. —

The same factors which justify a warrantless automobile search — probable cause and exigent circumstances — justify an on the spot search of containers found in the course of such a search. Clark v. State, 574 P.2d 1261 (Alaska 1978).

It may be that not every container found in a lawfully searched automobile is subject to a search as a part of the automobile search, because a higher expectation of privacy may inhere in the container than is afforded the automobile. Clark v. State, 574 P.2d 1261 (Alaska 1978).

This section affords protection to any closed luggage, briefcases, containers, or packages within a vehicle which is subjected to an inventory search. State v. Daniel, 589 P.2d 408 (Alaska 1979), distinguishing Clark v. State, 574 P.2d 1261 (Alaska 1978), factually since in Clark the supreme court was concerned with an exigent circumstance, i.e., the destruction of evidence exception to the warrant requirement.

E.Inventory Searches
1.In General

Validity. —

The supreme court has not yet ruled on the validity of inventory searches under the Alaska Constitution. Cruse v. State, 584 P.2d 1141 (Alaska 1978).

Inventory searches by law enforcement personnel may fit within an exception to the warrant requirement. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

2.Pre-incarceration Inventory Searches

Exception to warrant requirement. —

A preincarceration inventory search is an exception to the warrant requirement, where it is conducted to further the governmental purposes of prohibiting the introduction of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail environment and of protecting the arrestee’s property and protecting against claims that loss or damage to that property occurred while the property was under the control of jail authorities, and is limited to the extent necessary to respect Alaska’s constitutional guarantee against unreasonable searches and seizures. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Preincarceration procedure is a “search.” —

A preincarceration inventory procedure is a “search” in the sense that the term is employed in this section of the Alaska Constitution. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Justifications for preincarceration inventory search. —

No clear statutory right to release on bail without even temporary incarceration exists in Alaska. Nevertheless, the justifications for a preincarceration inventory do not exist if the arrestee is not to be incarcerated, and no inventory search can be conducted in such cases. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Since defendant was entitled to be released on bail without appearing before a magistrate, there was no justification whatever for processing him through the preincarceration remand and booking procedures and, as an incident to this, searching his person and his personal belongings. Further, the search of defendant’s wallet without a warrant was not justifiable as a search incident to his arrest. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

A warrantless jailhouse inventory is without justification when an arrestee is not going to be incarcerated, and it is therefore constitutionally impermissible. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Scope of preincarceration inventory search. —

A preincarceration inventory search of an arrestee’s person should be no more intensive than reasonably necessary to prevent the entry of weapons, illegal drugs, and other contraband or potentially dangerous items into the jail. Any item taken from the arrestee’s possession in this search may not be further searched or opened except pursuant to a search warrant or another recognized exception to the warrant requirement applicable in the circumstances. Reeves v. State, 599 P.2d 727 (Alaska 1979).

The inventory conducted shall consist of a cataloging of the arrestee’s property thus seized and may not, without a specific request from the arrestee, extend to a search and inventory of the contents of any object, closed or sealed container, luggage, briefcase, or package. Reeves v. State, 599 P.2d 727 (Alaska 1979).

Reasonableness of search. —

Prison officials act reasonably when they search all of a convicted prisoner’s personal belongings at the time the prisoner reports to serve his or her sentence, even though some or all of the belongings may be placed in storage. State v. Landon, 936 P.2d 177 (Alaska Ct. App. 1997).

Improper search ruled harmless error. —

When a person is arrested on a minor charge for which bail has been set, the person has to be provided a reasonable opportunity to raise bail before being subjected to booking procedures and a pre-incarceration inventory search; although the search violated defendant’s rights, the evidence would have been discovered in any event because he would have been incarcerated and subject to a search after his failure to make bail. Anderson v. State, 91 P.3d 984 (Alaska Ct. App. 2004).

The opening of a wooden block removed from defendant’s jacket during the booking procedure exceeded the permissible scope of an preincarceration inventory search. Lyle v. State, 600 P.2d 1357 (Alaska 1979).

Search of opaque, tightly-wrapped balloon. —

Where during a preincarceration inventory search of a defendant arrested for a traffic offense, the correctional officer removed an opaque, tightly-wrapped balloon from defendant’s jacket, search of the balloon exceeded the constitutionally permissible scope of a preincarceration inventory search and was not supported by the probable cause required by the plain view exception to the warrant requirement. Reeves v. State, 599 P.2d 727 (Alaska 1979).

3.Inventory Searches of Automobiles

Inventory searches of automobiles appear to be clearly outside exigency rules. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

Routine police inventorying of the contents of a vehicle is a search within the intendment of Alaska’s constitution. State v. Daniel, 589 P.2d 408 (Alaska 1979).

The fact that the inventory is undertaken in whole or in part for the benevolent purpose of protecting the property of the driver of the vehicle does not change the activity into something other than a search. What is determinative is that the conducting of an inventory is a governmental intrusion upon an individual’s privacy. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Search of closed containers. —

A warrantless inventory search of closed, locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable and thus an unconstitutional search under the Alaska Constitution. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Constitutional inventory procedures for vehicles. —

In conjunction with impounding a vehicle, the police, as a matter of routine inventory procedure, are entitled to catalog all articles which are not in closed or sealed containers, luggage, briefcases, and packages. Inventory procedures thus limited constitute only minimal intrusions upon an owner’s reasonable expectation of privacy and are thus constitutionally permissible in light of the rationales underlying police inventory searches of impounded vehicles and Alaska’s constitutional guarantee against unreasonable searches and seizures. State v. Daniel, 589 P.2d 408 (Alaska 1979).

As to any closed, sealed or locked containers, it is sufficient, for routine inventory purposes, that the officer merely list the item as a closed or locked footlocker, briefcase, package, or container and, if deemed necessary, remove the same for safekeeping. State v. Daniel, 589 P.2d 408 (Alaska 1979).

Where a package of marijuana was found in an automobile on top of a bag containing other packages, it was perfectly proper to take those items to the police station for safekeeping. This would not be for “inventory” purposes but to prevent possible loss or destruction of evidence. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

F.Consent

Requirements for effective consent. —

To be effective, a consent to search must be voluntary and must be given by one who has authority to give it. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Superior court's finding that defendant provided verbal assent in response to a state trooper's question was not supported by the record because both the transcript and the audio recording reflected that defendant's verbal response was inaudible, and the trooper did not testify that defendant nodded her head; given the superior court's erroneous findings with regard to defendant's responses, a remand was required. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

Remand was necessary for the superior court to reconsider whether defendant validly consented to the search of her tote; because there was factual overlap between whether the persistent nature of the state trooper's accusatory questioning affected the nature of the stop or the voluntariness of defendant's consent, it was appropriate to allow the superior court in the first instance to reconsider whether the encounter between the trooper and defendant ever ripened into an investigative stop. Gosuk v. State, 484 P.3d 130 (Alaska Ct. App. 2021).

Effect of consent to search or seizure. —

When an accused consents to a search or seizure conducted without a search warrant, the protection he would have enjoyed under the 4th amendment is lost to him. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Search authorized where valid consent tendered. —

Among the recognized exceptions to the rule that a search must rest upon a warrant are searches conducted pursuant to a valid consent. Nix v. State, 621 P.2d 1347 (Alaska 1981).

One exception to the warrant requirement is that police officers may conduct a search or seizure without a warrant where a person with the requisite authority, be it the defendant or a third party, tenders a valid and voluntary consent to the search or seizure. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

In an assault case, court properly denied defendant’s motion to suppress where the victim’s consent to search her cabin was valid; she did not simply acquiesce to the authority, she gave the officer directions on how to get there and how to avoid problems with her dogs. Nason v. State, 102 P.3d 966 (Alaska Ct. App. 2004).

Consent not required. —

Exigent circumstances authorized the police to obtain a nonconsensual, warrantless sample of defendant’s blood, AS 28.35.031(g) , such that defendant’s motion to suppress was properly denied. The blood draw did not violate defendant’s right to be free from unreasonable searches and seizures. Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Right to refuse consent. —

A defendant has a right under the 4th amendment to the federal constitution and this section of the state constitution to refuse to consent to a search of all or part of his car. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Consent to a search, in order to be voluntary, must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion, and is not lightly to be inferred. Frink v. State, 597 P.2d 154 (Alaska 1979); State v. Salit, 613 P.2d 245 (Alaska 1980).

There must be clear and convincing evidence that the consent was unequivocal, specific, and intelligently given. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Consent to a search, to be valid, must be shown to be unequivocal, specific and intelligently given, and not the product of duress or coercion. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Where a passenger’s express consent to the search of her belongings was nothing more than acquiescence to apparent lawful authority, it was not voluntary, uncoerced consent. Schaffer v. State, 988 P.2d 617 (Alaska Ct. App. 1999).

Search of defendant’s person and purse were improper because she did not know the basis for the trooper’s assertion of authority over her, and Alaska Const., art. I, § 14 prohibited the trooper from asking defendant for permission to search her person and her vehicle for drugs; trooper conducting the traffic stop was prohibited from requesting defendant’s permission to conduct a search that was unrelated to the basis for the stop and not otherwise supported by a reasonable suspicion of criminality. Brown v. State, 182 P.3d 624 (Alaska Ct. App. 2008).

The totality of circumstances test for voluntariness of a consent search is the prevailing federal standard, and the Alaska Constitution does not require a different standard for noncustodial consent searches. Frink v. State, 597 P.2d 154 (Alaska 1979).

Question of fact. —

Determination of the requisite voluntariness of the disputed consent is a question of fact to be determined from all the circumstances. Gray v. State, 596 P.2d 1154 (Alaska 1979).

There are no magic words without which a valid consent cannot be found; rather, determination of the requisite voluntariness of the disputed consent is a question of fact to be determined from all the circumstances. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Burden of proving voluntariness of consent. —

In determining whether a consent to a search or seizure is voluntary, the state has the burden of proving that such consent was a product of the person’s free will and not the product of police coercion, either express or implied. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

The state has the burden of demonstrating the validity of a consent, and that consent is not to be inferred lightly. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Overstepping defined boundary. —

After knocking on the door of the residence of a hit-and-run suspect, the officers were told by defendant’s wife to come into the entryway and wait, but when the wife started down the stairs, the officers followed and found defendant. The officers’ entry into the basement could not be justified as a consensual search, because the wife’s limited consent constituted the boundary of the officers’ freedom within the house, and the fact that the wife failed to protest when the officers followed her into the basement did not constitute the affirmative act of consent required by the Fourth Amendment. Haskins v. Municipality of Anchorage, 22 P.3d 31 (Alaska Ct. App. 2001).

Consent not vitiated. —

Error in designating a tenant’s residence in a search consent form and the tenant’s uncommunicated belief that the error would render the consent form technically invalid provides no basis for vitiating the tenant’s consent to a search of his apartment. Ingram v. State, 703 P.2d 415 (Alaska Ct. App. 1985), aff'd, 719 P.2d 265 (Alaska 1986).

Awareness of right to refuse. —

The person giving consent need not be advised of the right to refuse to allow a search prior to executing a valid consent to search, although the subject’s awareness of the right to refuse is a factor in the determination of the voluntariness of the consent. Gray v. State, 596 P.2d 1154 (Alaska 1979).

The state, to show consent, does not have to prove specifically that defendant knew of his right to refuse to allow the search. Frink v. State, 597 P.2d 154 (Alaska 1979).

The mere fact that persons are on notice that they may be searched cannot, by itself, be the basis for implying consent. State v. Salit, 613 P.2d 245 (Alaska 1980).

Assuming that, on the basis of posted notices, an airline passenger gave implied consent to X-ray his bag, it could not be inferred that he gave implied consent to allow the opening and searching of his bag. Although the notice provided that carry-on luggage “is being inspected by X-ray,” it stated “Physical inspection may be requested,” and “Inspection may be refused,” and thus the notice indicated that before a physical inspection there would be a request and a right to refuse the request, which would result in the passenger not being permitted “to pass the inspection point.” Under these circumstances, the government had not borne its burden of proof that the passenger knowingly gave implied consent to open and search his bag. State v. Salit, 613 P.2d 245 (Alaska 1980).

Implied continuing consent. —

Lack of objection to subsequent, closely related entries and searches, after valid consent to an initial entry, can imply that the initial consent continued. Phillips v. State, 625 P.2d 816 (Alaska 1980).

While it might have been prudent for the police to have obtained a specific consent to each new intrusion, their failure to do so did not vitiate an implied continuing consent to a search. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Temporary custody, standing alone, does not invalidate a subsequent consent to a search. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

Policeman’s identity not revealed. —

One’s consent to entry by a policeman is not to be regarded as involuntary merely because the policeman’s identity is either not revealed or affirmatively misrepresented. Nix v. State, 621 P.2d 1347 (Alaska 1981).

The standard of fairness was not violated where no affirmative misrepresentation of the police officer’s identity was made; he was able to view the stolen property, openly displayed in the common area of the apartment, just as the other guests of those occupying the apartment had been able to; and the limits of the consent were not exceeded by venturing into private rooms or prying into closed containers. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Undercover search. —

The standard for evaluating the constitutionality of an undercover search is whether, under the facts of the particular case, the undercover operation leading to consent to the search falls below an acceptable standard for the fair and honorable administration of justice. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Intelligent consent to a search of a residence can still be found where an undercover agent has affirmatively misrepresented both his identity and purpose where: the officer’s actions do not amount to conduct that would morally or legally compel a suspect to grant the officer entry into his home; the officer’s intention is not to gain access; once inside the dwelling, the officer does not exceed the scope of the invitation; and before going to the residence, the officer receives enough information pointing to the owner as a prime suspect. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Consent following illegal search or arrest. —

When defendant’s consent to search was tainted by police officers’ initial illegal search, after which defendant was told that a methamphetamine laboratory had already been found, the subsequent search was also tainted, and the superior court should have granted defendant’s motion to suppress. Moore v. State, 119 P.3d 1018 (Alaska Ct. App. 2005).

Apparent authority to consent alone is required. —

All that is required is apparent authority, in the sense that it reasonably appeared to the person who entered that the inviter had the right to invite him inside the premises. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Actual authority regardless of reasonable appearances is not required. Nix v. State, 621 P.2d 1347 (Alaska 1981).

Basis for agent’s authority to permit search. —

See Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Consent to search held voluntary. —

When the accused is directly asked whether he objects to the search, there must be at least some suggestion that his objection is significant or that the search waits upon his consent. When this is combined with a warning of his right to be silent, and his right to counsel, which would seem in the circumstances to put him on notice that he can refuse to cooperate, it is fair to infer that his purported consent is in fact voluntary. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

If the defendant permits a warrantless search of his home or establishment in the mistaken belief that he has nothing there which will incriminate him, it has been held that the search has been voluntarily consented to. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

A defendant will be held to have consented voluntarily, unequivocally, and intelligently to a search if, under the circumstances, it is reasonable to conclude that he was put on notice that he could refuse to cooperate with law enforcement authorities. Pistro v. State, 590 P.2d 884 (Alaska 1979).

When a law enforcement officer knocks at the door, identifies himself, and asks to be allowed to search the premises, the acquiescence thus obtained is generally not considered to be voluntary consent. See Judd v. United States, 190 F.2d 649, 89 U.S. App. D.C. 64 (D.C. Cir. 1951); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Where one of two men in a garage was informed of his right to remain silent and to have the assistance of counsel prior to consenting to a search of the garage, his statement to the police officer agreeing to release the items in the garage to the officer constituted effective consent to the second entry into the garage and the seizure of evidence. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Validity of third-party consent. —

Where a third party consents to a search or seizure, the validity of that consent depends upon physical possession or ownership of the property. Christian v. State, 513 P.2d 664 (Alaska 1973).

One placed in a position of holding, for another, evidence which he reasonably believes is materially linked to a crime has the authority to disassociate himself from that evidence by voluntarily surrendering it to the police. Gieffels v. State, 590 P.2d 55 (Alaska 1979).

Employee’s expectation that, if he did not consent to a search, a warrant permitting search would be obtained did not invalidate his consent where employee knew the trooper could not search without his permission or a warrant, the trooper did not threaten the employee with a warrant, and there was clearly probable cause to obtain a warrant. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Where two state police officers saw one suspect enter defendant’s apartment and smelled marijuana outside its entrance only after contacting the apartment building manager, any illegality arising from the officers’ tag-along entry into the building was, by that time, vitiated by the manager’s knowing acquiescence to and acceptance of their presence. Hubert v. State, 638 P.2d 677 (Alaska Ct. App. 1981).

Third party consent to search of vehicles. —

Where employee was left in charge of the trucking company yard, he was foreman of the repair shop and was authorized to purchase parts for vehicles being repaired; and while the owner had never specifically authorized him to admit troopers to the premises, the owner had never forbidden it and had indicated that had he been present, he probably would have authorized the search himself, the employee had actual authority to give the troopers access to the company yard and the junk vehicles stored there. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

The person in charge of trucking yard had authority to consent to search the interior of a vehicle stored in the yard where, although the vehicle was acquired for someone else and was intended by that other person to be used for parts, it was owned by and registered to the owner of the yard who had a joint right of access with the person for whom the car was bought. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

Where automobile in trucking yard was obviously disabled and was stored with other junk vehicles in a part of the yard reserved for vehicles being cannibalized for parts, there was nothing that would put the police on notice that the vehicle was the exclusive property of another person as distinguished from the other wrecks surrounding it, even though the person in charge of the yard told the trooper while the search of the automobile was being conducted that it had been acquired by the owner of the yard for the other person to be restored for that person and was located in a make-shift tent, and the trooper could reasonably rely on the apparent authority of the person in charge and search the automobile’s trunk. Schikora v. State, 652 P.2d 473 (Alaska Ct. App. 1982).

One who has joint access may effectively consent to a search, and any evidence thus disclosed may be used against the other. In re Cornelius, 521 P.2d 497 (Alaska 1974).

A person with joint access to, or control of, a place is authorized to consent to entry. Phillips v. State, 625 P.2d 816 (Alaska 1980).

Tenant’s consent to the search of his apartment authorized the police, without a warrant, to search the petitioner’s wallet, jacket and gun holster found on the living room floor. Ingram v. State, 719 P.2d 265 (Alaska 1986).

Double-booked hotel room. —

Chief of hotel security had apparent authority to consent to police entry of double-booked hotel room where his initial presence was consented to by one of the registered guests in the room and another party who intervened at the guest’s request, and the security officer’s initial entry and subsequent entries were proximate in time and effected without his ever having relinquished actual custody and control over the room. Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Probation provision requiring probationer to “submit” to search of person, personal property, residence, or vehicle by probation officer is an authorization for warrantless searches, even when the probationer does not consent to the search. State v. James, 963 P.2d 1080 (Alaska Ct. App. 1998).

Testimony of refusal to consent. —

It was error to admit testimony of defendant’s refusal to consent to a search of the front of his car and error to comment on it during summation. Padgett v. State, 590 P.2d 432 (Alaska 1979).

Effect of plea of nolo contendere. —

Where defendant entered a plea of nolo contendere to a charge of robbery, the issue of the voluntariness of a witness’ consent to search was not preserved for purposes of appeal. Gray v. State, 596 P.2d 1154 (Alaska 1979).

G.Emergencies

Exigency rule adopted. —

The supreme court has adopted the “exigency rule” exception to the necessity for a search warrant. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

In Alaska the supreme court has recognized the “emergency” exception to the warrant rule. Schraff v. State, 544 P.2d 834 (Alaska 1975).

The emergency aid doctrine has been uniformly recognized as an exception to the warrant requirement. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Right to enter in an emergency. —

The right of police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers, and derives from the common law. The criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact. Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 662, 21 L. Ed. 2d 586 (U.S. 1969).

Police officers have a right to enter buildings without a warrant in an emergency as an inherent part of their common-law duties. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Where police officers enter buildings without a warrant, it is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact, which is crucial in evaluating the actions of the police. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Reports of deaths are not always accurate and police officers should be encouraged to check out such reports as quickly as possible in case a spark of life remains. Where police officers had been told there was a body in an individual’s home, the officers had a reasonable belief as to the existence of an emergency which justified their unauthorized entry into the individual’s residence. Therefore, as a matter of law, the entry was privileged. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

The emergency aid doctrine is a well recognized exception to the warrant requirement. Under the doctrine, the warrantless entry of a dwelling is allowed when an officer has reasonable grounds to believe that there is an immediate need to take action to prevent death or to protect persons or property from serious injury. Harrison v. State, 860 P.2d 1280 (Alaska Ct. App. 1993).

Alaska Const. art. I, §§ 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution and the Alaska Constitution prior to the enactment of § 22. Alaskans’ heightened right to privacy is safeguarded by requiring the State to show (1) the police had reasonable grounds to believe an emergency was at hand and an immediate need for their assistance in the protection of life or property; (2) the search was not primarily motivated by the intent to arrest a person or to seize evidence; and (3) some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Gibson, 267 P.3d 645 (Alaska 2012).

Investigative stop of a vehicle differs fundamentally from an entry into a home; the reasonable suspicion needed for an investigative stop is a substantially lower showing than the one required for probable cause, and in order to enter a home without a warrant under the emergency aid exception, the officers must satisfy all of the exception's requirements, and each requirement specifically refers to the responding officer's reasonable belief. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Restriction in time and scope. —

Any warrantless search conducted under the emergency aid doctrine is restricted in time and scope to the nature and duration of the particular emergency. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Sufficiency of emergency. —

Existence of an emergency sufficient to justify a warrantless entry into a house must be determined by an objective standard; whether the evidence would have led a prudent and reasonable officer to perceive an immediate need to take action in order to prevent death or to protect against serious injury to persons or property. Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Seizure to prevent destruction or removal. —

The constitutional provisions proscribing unreasonable searches and seizures did not prohibit the seizure of a note in order to prevent its destruction or removal. Weltz v. State, 431 P.2d 502 (Alaska 1967).

Exigent circumstances justified a warrantless entry of an apartment where the defendant who entered the apartment was suspected to be associated with a sizeable illegal drug sale, which had been unexpectedly interrupted by the presence of police; the defendant had tipped off others about the presence of police; the drugs and the money involved in the sale were capable of being readily concealed or destroyed; and the warrantless police intrusion was minimal, consisting of a peaceful entry through an unlocked doorway by officers who had announced their presence and identity. Ingram v. State, 703 P.2d 415 (Alaska Ct. App. 1985), aff'd, 719 P.2d 265 (Alaska 1986).

Investigation of automobile accident. —

Where a police officer was dispatched to investigate a possible automobile accident; the officer observed an automobile with its front bumper “hung up” on a guardrail; the car’s engine was not running but its headlights were on; the key was in the ignition switch in the “on” position; and a man was lying on the front seat of the car with his feet under the steering wheel and his head toward the passenger side and appeared to be asleep, it was entirely reasonable for the officer to open the car door to awaken the man and thereafter request that he get out of his vehicle. Even if such action amounted to a warrantless search and seizure, the minimal intrusion was justified under the emergency exception to the warrant requirement and, therefore, was not violative of either the 4th amendment to the Constitution of the United States or this section. Anchorage v. Cook, 598 P.2d 939 (Alaska 1979).

Entry not justified by emergency. —

Where witnesses reported that two men inside an apartment had fired two shots from the walkway outside the apartment building, police were not justified, under the “emergency” rule, in entering and making a warrantless search of the apartment where there were no reports of shots having been fired inside the apartment and no reports of anyone’s having been hit by gunfire. Zinn v. State, 656 P.2d 1206 (Alaska Ct. App. 1982).

Police officers were not entitled to judgment as a matter of law on homeowners' trespass and invasion of privacy claims because there was a genuine issue of material fact whether they had reasonable grounds to believe an emergency was at hand in the homeowners' apartment; the dispatcher's undisclosed knowledge of the details of a 911 call did not provide any information about the situation at the home, and her information could not be imputed to the officers under the emergency aid exception. Lum v. Koles, 426 P.3d 1103 (Alaska 2018).

Fire officials. —

See note under this catchline under analysis line I, “General Consideration.”

H.Stop and Frisk

Purpose of stop and frisk doctrine. —

The stop and frisk doctrine, a limited exception to the rule that officers can detain a person only on probable cause, is designed to aid police officers in street encounters where suspicious circumstances exist not amounting to probable cause. McCoy v. State, 491 P.2d 127 (Alaska 1971).

No conflict with 4th amendment or state constitution. —

The supreme court’s rule permitting temporary detention for questioning in certain cases, i.e., cases where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, does not conflict with the 4th amendment or the state constitution. Coleman v. State, 553 P.2d 40 (Alaska 1976).

The Alaska rule, permitting a temporary stop when the officer had a reasonable suspicion that imminent public danger exists, or serious harm to persons or property had recently occurred, is not in conflict with either the 4th amendment or the constitution of the state of Alaska. Ebona v. State, 577 P.2d 698 (Alaska 1978).

Unconstitutional parole conditions did not justify search of parolee. —

In a drug case, a motion to suppress should have been granted; officers had no justification for conducting an investigatory stop on a parolee leaving a bar, based on parole conditions authorizing a breath test and a search at the request of any police officer, because those conditions were unconstitutional. Reichel v. State, 101 P.3d 197 (Alaska Ct. App. 2004).

The Alaska rule is more restrictive than the rule articulated by the supreme court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (U.S. 1968). Ebona v. State, 577 P.2d 698 (Alaska 1978).

“Reasonable belief ” standard for investigatory stops. —

Where nothing at the scene of the arrest indicated the existence of an imminent public danger, and there was no sign of recent serious injury to person or property, Coleman v. State , 553 P.2d 40 (Alaska 1976) stands as a bar to invocation of the “reasonable belief” standard for investigatory stops found in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (U.S. 1968). Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983).

Authority to stop and frisk. —

When the primary suspect in a recent felony is encountered by a police officer, it is not unreasonable for him to briefly detain that individual for questioning, and when the officer has reasonable cause to believe the individual may be armed, to execute an immediate patdown of his person for weapons. Free v. State, 614 P.2d 1374 (Alaska 1980).

A police officer with a reasonable suspicion that imminent public danger exists or serious harm that has recently occurred was caused by a particular person may stop that person. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

As Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), makes clear, once police have made a valid stop they may then make a protective frisk of a suspect to remove weapons. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Requirements. —

As a matter of Alaska constitutional law the state supreme court will apply the rule in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), only where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred. Ozenna v. State, 619 P.2d 477 (Alaska 1980); Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983).

Suspicion must exist in order to stop a person in the first place, and the officer must reasonably believe that the person is armed and dangerous before any frisk is permissible. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Temporary detention for questioning is permitted only when: (1) the police officer has an actual suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, and (2) this suspicion is reasonable. Waring v. State, 670 P.2d 357 (Alaska 1983).

A police officer may not continue an investigation by taking a suspect into the police car and questioning him there when there exists no articulable reason to suspect that anything is wrong. Waring v. State, 670 P.2d 357 (Alaska 1983).

Motion to suppress should have been granted where officers had no justification for conducting an investigatory stop on a parolee leaving a bar; the court declined to consider whether a stop was justified based on reasonable suspicion that a parole violation had occurred because there was no imminent danger shown. Reichel v. State, 101 P.3d 197 (Alaska Ct. App. 2004).

Items in defendant’s hand. —

Forcible opening of a suspect’s hand, or an order directing the suspect to open his hand, is equivalent to a pat-down search; thus, it requires the same justification as a pat-down of the detainee’s clothing. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

When Miranda warnings required. —

An investigatory stop does not necessarily trigger a right to Miranda warnings. However, if a motorist is detained under circumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination, Miranda warnings would be required. Blake v. State, 763 P.2d 511 (Alaska Ct. App. 1988).

Search for weapons. —

The scope of a protective search for weapons in a stop and frisk situation should be more limited than a search incident to an arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

If the police had enough facts to make a stop, the permissible zone for a search for weapons would be the same as that for a search incident to arrest. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Police officer was permitted to seize a plastic bag containing cocaine discovered on defendant’s person during a lawful pat-down search. McGuire v. State, 70 P.3d 1114 (Alaska Ct. App. 2003).

Officer can justifiably remove and examine an object from a pocket or hand during a frisk for weapons if the officer reasonably believes that the object could be used as a weapon; when a court evaluates whether a pat-down search for weapons was justified, the court may take into account the nature of the criminal activity that the officer reasonably suspects is occurring. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

Right to stop under suspicious circumstances. —

Police officers have the right to stop and question a person observed under suspicious circumstances, and if probable cause is then found to exist, the person may be arrested. Evidence taken from him as an incident to the arrest may be admitted at the trial. Maze v. State, 425 P.2d 235 (Alaska 1967).

And evidence in plain view may be seized. —

Where an investigatory stop was proper under the circumstances, evidence which was in plain view was legitimately seized and the trial court did not err in refusing to suppress it as evidence. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Inquiry vs. Investigative stop. —

An inquiry of someone at the scene is not necessarily a 4th amendment seizure. An investigatory stop and an arrest are 4th amendment seizures. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983); Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

The factor which distinguishes an on-the-scene investigation from an investigatory stop or arrest is that the person encountered “on the scene” is under no obligation to remain, may decline to listen to any questions, and may go on his way. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

An investigatory stop is differentiated from an arrest on the basis of (1) its purpose, (2) the magnitude of the intrusion, and (3) the quantum of information necessary to justify the intrusion, i.e., reasonable suspicion rather than probable cause. State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983).

Among the factors to be considered in determining whether a seizure is an investigatory detention or arrest are the requirement that the investigative detention be for a limited and specific inquiry; that the detention be of brief duration; and that it not require the person stopped to travel an appreciable distance. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Whether a seizure is an investigatory detention or an arrest turns on the duration and intrusiveness of the restraint. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Use of police records. —

The police record of one who is subjected to an investigative stop is a legitimate factor to be considered in determining whether there is sufficient suspicion to justify the stop. Ozenna v. State, 619 P.2d 477 (Alaska 1980).

Stop and search justified. —

An investigative stop and search was justified when the officer knew that a burglary in which one or more handguns and ammunition had been taken had been recently committed near where defendant was walking; defendant had a criminal record known to the officer; there were unusual protrusions in defendant’s coat; and defendant’s hand was positioned in a manner which suggested he was carrying a handgun. Ozenna v. State, 619 P.2d 477 (Alaska 1980).

Where police saw defendant’s companion crouching down and lighting a crack pipe in an alley, police properly conducted an investigatory stop of the two men; police were authorized to make defendant open his hand, revealing a small rock of crack cocaine and leading to defendant’s conviction for fourth-degree misconduct involving a controlled substance. Albers v. State, 93 P.3d 473 (Alaska Ct. App. 2004).

Investigatory stop of car after anonymous caller had reported a drunk driver was warranted. Effenbeck v. State, 700 P.2d 811 (Alaska Ct. App. 1985).

There was a sufficient risk of imminent public danger to warrant an investigatory stop where defendant’s driving just prior to his encounter with the police officer demonstrated his willingness to drive in his current condition and at the time of the encounter, defendant retained possession of his car, and it remained immediately accessible for him to drive. Romo v. Municipality of Anchorage, 697 P.2d 1065 (Alaska Ct. App. 1985).

Where trooper observed defendant make an illegal turn, followed her for about one-half mile, and observed her swerve three separate times before stopping her, such actions were consistent with drunk driving, and the trooper was stopping defendant to determine whether she was driving while intoxicated. State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983).

Where police officer had a reasonable suspicion that defendant was involved in a burglary, a felony under Alaska law, a brief pat-down for weapons was permissible. Brown v. State, 684 P.2d 874 (Alaska Ct. App. 1984).

When an informant provided specific, detailed information that defendant and two other men would be bringing drugs into Fairbanks from Anchorage in a rental car, and police officers corroborated the information, the officers had reasonable suspicion to stop the car in which defendant was riding. Williams v. State, 139 P.3d 1282 (Alaska Ct. App. 2006).

Detention exceeded limit for investigative detention. —

Where defendant was taken from a neighbor’s home in a police vehicle to the police station and, without being formally arrested, interrogated for nearly an hour, despite repeated and continuous denial of any involvement in the robbery, his detention exceeded the limits of an investigative detention. Lindsay v. State, 698 P.2d 659 (Alaska Ct. App. 1985).

Question of fact. —

Where a person is subjected to an investigatory stop and thereafter agrees to go to the police station to continue interrogation, it is, at the very least, a question of fact for the trial judge whether the suspect’s consent is free and voluntary or the product of duress or coercion, express or implied. State v. Burdine, 698 P.2d 1216 (Alaska Ct. App. 1985).

I.Incident to Arrest

Legal arrest removes personal privacy from realm of protection. —

While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Scope of exception. —

Under federal law, a police officer who has legally arrested a person may search that person incident to the arrest; Alaska law places more stringent requirements on the officer’s ability to search incident to arrest. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Under Alaska law, an officer may conduct a limited search for weapons incident to an arrest; beyond this, the officer may only search for evidence related to crimes for which the police have probable cause to arrest. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Warrantless search incident to arrest. —

A warrantless search incident to and contemporaneous with a lawful arrest is an exception to the rule that a search must rest upon a search warrant. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969); Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

A search would be unreasonable because made without a warrant unless the facts were such as to bring this case within an exception to the rule that a search must rest upon a search warrant. The exception is that which recognizes the validity of a search made without a warrant where the search is made incident to a lawful arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

There is wide agreement that a warrantless search incidental to an arrest is not unreasonable. Fresneda v. State, 458 P.2d 134 (Alaska 1969).

Where defendant was arrested for “minor on licensed premises” for being in a bar while under 21 years of age, the police were permitted to search him; defendant was not entitled to suppress evidence of a plastic bag which contained cocaine seized by police during the search. Johnson v. State, 88 P.3d 1137 (Alaska Ct. App. 2004).

Search of felony arrestee. —

To require the police to get a search warrant to search the person of every felony arrestee when it is to be expected that the magistrate will always find probable cause that evidence of the crime is on his person, will inundate the magistrates with warrant petitions which will be granted as a matter of course and run the risk that magistrates will not carefully examine the circumstances in more deserving cases. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Warning of rights not necessary. —

A specific warning of 4th amendment rights is not necessary to validate a warrantless search after the suspect has been arrested. Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

An arrest or a traffic stop should not be used as a pretext for a search. Brown v. State, 580 P.2d 1174 (Alaska 1978); Clark v. State, 574 P.2d 1261 (Alaska 1978).

Search incidental to traffic violations and vagrancy. —

While in most felony cases the incidental search may well turn out to be reasonable, the nexus between the item to be seized and the criminal behavior involved is more difficult to establish in cases involving arrest for such offenses as traffic violations and vagrancy. Automatic application of the incidental search doctrine in such cases may well result in the sanctioning of unreasonable searches in individual cases, contrary to the requirement of the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Defining boundaries in “incident to arrest” exception. —

In defining the boundaries of incident to the arrest exception, the need for the exercise of common sense is apparent. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The boundaries of the area which can be searched incident to a lawful arrest are based upon two rationales: First, to protect the arresting officer and to deprive the prisoner of potential means of escape and, secondly, to avoid destruction of evidence by the arrested person. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Restrictions on warrantless incidental searches. —

Adequate protection for the arrestee’s legitimate interests in privacy will be provided by the following restrictions on warrantless incidental searches of the person: (1) The arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional. (2) The search must be roughly contemporaneous with the arrest, at least within the boundaries suggested by United States v. DeLeo , 422 F.2d 487 (1st Cir. 1970), and adopted here. (3) The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid. The search must be incident to the arrest, and not vice versa. (4) Finally, the arrest must be for a crime, evidence of which could be concealed on a person. McCoy v. State, 491 P.2d 127 (Alaska 1971); Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Search incident to incarceration and search incident to arrest distinguished. —

See Reeves v. State, 599 P.2d 727 (Alaska 1979).

There is a permissive area of search without a search warrant beyond the person proper. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Police officers had no lawful right to make a search for some other purpose than uncovering evidence that would connect the defendant with a traffic violation. Ellison v. State, 383 P.2d 716 (Alaska 1963).

Officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. McCoy v. State, 491 P.2d 127 (Alaska 1971).

When a search goes far beyond defendant’s person and the area into which he could reach to obtain a weapon to harm the officer or escape or evidence which he might conceal or destroy, it is unreasonable. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Once warrantless searches beyond the area of the arrestee’s immediate control are allowed, the 4th amendment with its “reasonableness” requirement suggests no rational limits to circumscribe the search. Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for, and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. There is ample justification, therefore, for a search of the arrestee’s person and the area within his immediate control. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Once a person is lawfully arrested, the arresting officers have the right, without a search warrant, to search the arrestee’s person and the area within his immediate control for weapons and destructible evidence of the crime. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Where police officers validly arrested defendant on the basis of an outstanding traffic warrant; where in the face of a truculent defendant and a potentially hostile crowd of bystanders, the officers attempted to conduct a pat-down search of defendant for weapons before placing him in the patrol car, and where, during the course of his pat-down of defendant, an officer’s hand hit something hard in defendant’s left shirt pocket, it was reasonable for the officer to remove these hard items from the shirt pocket. Thus, the search of defendant’s shirt pocket was permissible under the warrantless search for weapons incident to a lawful arrest exception to the warrant requirement. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Since the search was incident to a valid arrest for the crime of forgery, and evidence of that crime might well have been concealed on accused’s person, the search of a packet containing cocaine was valid and the conviction based on such evidence was proper. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Warrantless search of a bag found in the pocket of robbery suspect’s jacket, which had been removed and concealed between the passenger seat and the console of the van in which the suspect was riding was a permissible search incident to defendant’s arrest. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Requesting passenger's identification to run warrants check. —

Officer is precluded from requesting a passenger's identification, as here, and then using that to run a warrants check when the officer's request is unrelated to the basis for the stop and the officer has no other case-specific justification for doing so; generalized concern for officer safety, without more, is insufficient to override the rights of passengers in relation to routine traffic stops. Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Determining reasonableness of scope of search. —

The reasonableness of the scope of a search incident to arrest must be viewed from the realistic perceptions of the police officer at the time the search is made, and not by a later analysis of all the possible options that might hypothetically have been considered. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Containers on person of arrestee. —

Upon the lawful, nonpretextual arrest of an individual for a crime, evidence of which could be concealed on the person, a search of the arrestee’s person, his clothing and articles which, akin to clothing, are immediately associated with the person of the arrestee may be searched at the time of the arrest, or within a reasonable period thereafter, and as long as the search is confined within these limits, it is permissible for officers to open and inspect the contents of any closed containers found, unless under the circumstances it could not reasonably be believed that the container would yield a weapon or evidence of the crime for which the arrest was made. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Closed containers which are not by their nature immediately associated with the person of the arrestee, but which are merely seized from the arrestee’s proximity at the time of his arrest, cannot be opened and inspected without a search warrant after they have been removed from the arrestee’s control and secured by the police. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

A container on the person of an arrestee at the time of the arrest may be seized, opened, and searched as an incident to the arrest, unless the container is too small to contain a weapon and the arrest is for a crime, such as reckless driving, for which no evidence could exist in the container. This is so even though it is not strictly necessary to open a closed container found on the person of one who is arrested in order to protect the arresting officer from the use of a hidden weapon or to prevent the destruction of evidence. These goals can ordinarily be accomplished simply by seizing the container and removing it from the reach of the arrestee. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

The language “immediately associated with the person of the arrestee” which pointedly excepts certain personal property from the requirement that an exigency must exist to justify a search means that containers found in clothing pockets may be searched, and it also suggests that containers such as purses which are often worn on the person and generally serve the same function as clothing pockets are also excepted from the strict exigency requirement. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980), cert. denied, 450 U.S. 1032, 101 S. Ct. 1744, 68 L. Ed. 2d 228 (U.S. 1981).

A search incident to an arrest, where no evidence of the crime charged could exist on the person, may extend to the person of the arrestee and any containers associated with the arrestee’s person which may contain a gun, a large knife, or a club. A search of smaller containers which could only contain atypical weapons such as a razor blade, a small knife, a safety pin, or a needle must be supported by specific and articulable facts which would lead a reasonable person to believe that such an atypical weapon was in the small container. Jackson v. State, 791 P.2d 1023 (Alaska Ct. App. 1990).

In the context of a search incident to arrest, a motion to suppress should have been granted under the Alaska Constitution because it was not shown that an ashtray where the drugs were located was the type of container immediately associated with defendant's person, even though the ashtray was capable of holding personal items. It was not defendant's burden to show that ashtrays in vehicles were not commonly used to store personal items. Pitka v. State, 378 P.3d 398 (Alaska Ct. App. 2016).

Search of defendant’s wallet pursuant to a custodial arrest was not justified, where a search of defendant’s person uncovered no weapons and the wallet was too small to conceal anything but an atypical weapon. Jackson v. State, 791 P.2d 1023 (Alaska Ct. App. 1990).

Search of glove box. —

Police are authorized to search an unlocked glove box incident to driver’s arrest if driver is arrested in the vehicle or immediately upon exiting the vehicle. Lyons v. State, 182 P.3d 649 (Alaska Ct. App. 2008).

Superior court properly denied defendant’s motion to suppress a handgun found in the glove box; police were authorized to search the glove box because they were entitled to search defendant’s vehicle incident to his arrest, and the vehicle’s glove box was immediately associated with defendant’s person. Lyons v. State, 182 P.3d 649 (Alaska Ct. App. 2008).

Lawfulness of arrest without warrant depends on probable cause. —

Where an arrest is made without a warrant, its lawfulness depends on whether it was based on probable cause. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970); Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

The existence of probable cause to make an arrest without a warrant justifies an officer in conducting an immediate search without a warrant. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Conditions to constitutionally valid arrest. —

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it; whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

In order for this exception to apply the police must have probable cause to make an arrest at the time the search and seizure takes place, but it is not necessary to formally place the suspect under arrest. Uptegraft v. State, 621 P.2d 5 (Alaska 1980).

Articulating basis for arrest. —

Evidence should not have been excluded where the police had reasonable suspicion to stop defendant, to briefly detain him, and ultimately had sufficient information to arrest him for possession of cocaine, even though the police who arrested him did not correctly articulate the basis for the arrest. State v. Kendall, 794 P.2d 114 (Alaska Ct. App. 1990).

Unreasonable suspicion of crime. —

Where officer received a report that a green Ford pickup had left a gas station without paying for gas and over fifteen minutes later pulled over a green Ford pickup which did not have the same number of occupants nor the same license plate as that reported, it was unreasonable to suspect driver of gas theft. Hays v. State, 850 P.2d 651 (Alaska Ct. App. 1993).

The mere fact of arrest does not ipso facto justify an unlimited search of the person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The arrest may not be used as a mere pretext to search. Schraff v. State, 544 P.2d 834 (Alaska 1975).

And subsequently disclosed evidence does not justify arrest. —

An arrest may not be justified by what the subsequent search discloses. Schraff v. State, 544 P.2d 834 (Alaska 1975).

What a lawful arrest does justify is the search for fruits, instrumentalities, and evidence of the crime for which the arrest is made, and this is so only because the existence of probable cause for the arrest of a person normally justifies probable cause to believe that the suspect possesses such items. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is established that once a person is lawfully arrested, the arresting officers have the right, without a search warrant, to search the arrestee’s person and the area within his immediate control for weapons and destructible evidence of the crime. Avery v. State, 514 P.2d 637 (Alaska 1973).

Where there is probable cause to arrest a suspect, there is likewise probable cause to search his person for fruits, instrumentalities, and evidence of the crime for which the arrest is made. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Absent specific articulable facts justifying the intrusion in the privacy in items carried on the person, a warrantless search incident to an arrest, other than for weapons, is unreasonable and therefore violative of the Alaska Constitution if the charge on which the arrest is made is not one evidence of which could be concealed on the person. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

What constitutes arrest. —

An arrest does not take place under Alaska law until a person has been taken into custody in order that he may be held to answer for the commission of a crime. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Neither the accused nor his companions were taken into custody until after the pistol and clothing, which gave rise to probable cause to make an arrest, had been seen. When the officer stopped the car he was doing nothing more than conducting an investigation in response to circumstances that aroused his suspicions. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

Considering the lateness of the hour, the fact that the car was seen coming from the side of the building rather than from the parking lot in front, and that it was being driven without its headlights on, the police officer had the right and the duty to make a prompt investigation, which required him as a matter of practical necessity to stop the car and question the occupants. This activity on the part of the police officer in the circumstances of this case was permissible and did not amount to an arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

A search is incident to arrest as long as it is made substantially contemporaneously with the arrest. Daygee v. State, 514 P.2d 1159 (Alaska 1973).

A search incident to arrest may precede the arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Search was incident to a lawful arrest although it preceded the arrest. Goss v. State, 390 P.2d 220 (Alaska 1964), cert. denied, 379 U.S. 859, 85 S. Ct. 118, 13 L. Ed. 2d 62 (U.S. 1964), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970).

But it must require a substantial contemporaneity of search and arrest. Schraff v. State, 544 P.2d 834 (Alaska 1975).

A search which preceded an arrest is lawful where the search occurred after probable cause for the arrest had arisen, and the arrest followed almost immediately thereafter. Schraff v. State, 544 P.2d 834 (Alaska 1975).

Search at place of detention. —

A search of an arrestee remains incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search is nonetheless “incident” to an arrest simply because the search is conducted at the stationhouse and not at the actual scene of the arrest. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

The procedure of searching a suspect at the stationhouse is normally permissible only where the suspect has in fact been validly arrested, and not where the suspect is detained under the “stop and frisk” situation. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Short delay between the time defendant was brought to the stationhouse and the seizure and search of his clothing held reasonable. Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Clothing subject to search. —

For cases holding that a suspect’s clothing worn at the time of arrest may be subject to search or laboratory analysis for evidence of the crime for which the arrest was made, see Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Breathalyzer examination as lawful search. —

Offering defendant breathalyzer examination, where there was independent evidence establishing probable cause to charge him with driving while intoxicated, was a lawful search incident to an arrest, and prosecuting him for refusing the test did not violate his fourth amendment rights. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Use of breathalyzer test results. —

In a prosecution for manslaughter, where the defendant objected, on grounds of right to counsel and unreasonable search and seizure, to the use of breathalyzer test results, and where the defendant’s defense was self-defense, the court held that even if there was constitutional error it was harmless error since (1) proof of intoxication is irrelevant to the defense of self-defense, (2) the evidence was not used to impeach the defendant, and (3) there was other ample, uncontested, evidence of intoxication. Nygren v. State, 616 P.2d 20 (Alaska 1980).

Blood alcohol test not more intrusive. —

For due process and search and seizure analysis, a blood test is not viewed as materially more intrusive than a breath test. The search and seizure provisions of the federal and state constitutions are not offended by a statute that allows the police to take a blood sample from an arrested motorist where the motorist has injured or killed another person without requiring the police to seek a breath sample first. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Sobriety tests. —

Because police stopped defendant after receiving reports that defendant was driving erratically and after having witnessed such driving, and because defendant failed a field sobriety test, the police had probable cause to arrest defendant for driving while intoxicated in violation of AS 28.35.030 ; because both the investigatory stop and arrest were lawful under Alaska Const. art. I, § 14, the trial court did not err when it denied defendant’s motion to suppress. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

It was error to deny defendant's motion to suppress search results on grounds the search warrant application showed probable cause to search anyone who might arrive on the premises during the warrant's execution because (1) this was justified only if the application showed good reason to believe anyone arriving during the execution probably participated in criminal activity being investigated and probably carried evidence of that activity, and (2) the application did not flag the "search any person" provision, explain why the provision was requested, show the premises functioned solely to sell and consume drugs, thus giving reason to think anyone present was engaged in illegal activity, estimate how long the search would take, state if the search would occur when innocent visitors might be expected, or try to exclude such visitors. Osborne v. State, 421 P.3d 113 (Alaska Ct. App. 2018).

Search upheld. —

In defendant’s drug case, where a police officer had validly arrested defendant for driving without a valid license, and because the officer had probable cause to believe that defendant was guilty of possession of illicit drugs, the officer properly searched defendant’s person — and, in particular, her wallet — for evidence of possession of illicit drugs as part of the search incident to arrest. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a police officer properly searched defendant’s wallet because it was done with defendant’s consent. When the officer searched defendant’s wallet, defendant had already given the officer consent to search her person for illegal drugs. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a police officer, in conducting a lawful search incident to arrest, properly unfolded and read a piece of paper in defendant’s wallet because, when a person was arrested for drug possession, the papers on their person could contain notations identifying the source of the drugs or identifying the price that was paid for the drugs. Such information would be evidence relating to the crime for which the person was arrested. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

In defendant’s drug case, a search of defendant was proper where she voluntarily consented, and she did not implicitly withdraw the consent when she stopped taking things out of her pockets and “hesitated” before acceding to the police officer’s request to continue. Baxter v. State, 77 P.3d 19 (Alaska Ct. App. 2003).

Where business owner complained about drug dealing and described the suspect, officer had probable cause to believe that defendant was selling drugs based on business owner’s information and because officer knew defendant, defendant’s criminal history, and that the area had a reputation for drug activity. Duncan v. State, 178 P.3d 467 (Alaska Ct. App. 2008).

J.Protective Searches

Exception narrowly drawn. —

Although the Alaska supreme court has recognized the protective search exception to the requirement that law-enforcement officers should not conduct searches without a warrant, the exceptions to the warrant requirement should be narrowly drawn. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

The protective search exception to the warrant requirement must be strictly limited to situations where a search is necessary for the protection of the police. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Entry into a residence on the basis of a protective search is allowed only under compelling circumstances. Taylor v. State, 642 P.2d 1378 (Alaska Ct. App. 1982).

Collateral references. —

68 Am.Jur.2d, Searches and Seizures, §§ 1 to 21.

79 C.J.S., Searches and Seizures, §§ 1 et seq..

Validity of consent to search given by one in custody of officers. 9 ALR3d 858.

Traffic violation: lawfulness of search of motor vehicle following arrest for traffic violation. 10 ALR3d 314.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple-occupancy structure. 11 ALR3d 1330.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search. 19 ALR3d 727.

Plea of guilty as waiver of claim of unlawful search and seizure. 20 ALR3d 724.

Admissibility, in criminal case, of evidence obtained by search by private individual. 36 ALR3d 553.

“Fruit of the poisonous tree” doctrine excluding evidence derived from information gained in illegal search. 43 ALR3d 385.

“Furtive” movement or gesture as justifying police search. 45 ALR3d 581.

Censorship and evidentiary use of unconvicted prisoner’s mail. 52 ALR3d 548.

Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner. 57 ALR3d 172.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by domestic employee or servant. 99 ALR3d 1232.

Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure. 10 ALR4th 376.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant’s objection or refusal to submit to test. 14 ALR4th 690.

Use, in attorney or physician disciplinary proceeding, of evidence obtained by wrongful police action. 20 ALR4th 546.

Permissible surveillance, under state communications interception statute, by person other than state or local law enforcement officer or one acting in concert with officer. 24 ALR4th 1208.

Disputation of truth of matters stated in affidavit in support of search warrant — modern cases. 24 ALR4th 1266.

Admissibility in criminal case of evidence that accused refused to take test of intoxication. 26 ALR4th 1112.

Employment of photographic equipment to record presence and nature of items as constituting unreasonable search. 27 ALR4th 532.

Search and seizure: suppression of evidence found in automobile during routine check of vehicle identification number (VIN). 27 ALR4th 549.

Validity of searches conducted as condition of entering public premises — state cases. 28 ALR4th 1250.

Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime. 29 ALR4th 771.

Admissibility, in criminal case, of evidence discovered by warrantless search in connection with fire investigation — post-Tyler cases. 31 ALR4th 194.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 ALR4th 378.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone. 38 ALR4th 1145.

Search and seizure: What constitutes abandonment of personal property within rule that search and seizure of abandoned property is not unreasonbale — modern cases. 40 ALR4th 381.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 ALR4th 60.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 ALR4th 366.

Propriety of governmental eavesdropping on communications between accused and his attorney. 44 ALR4th 841.

Validity of arrest made in reliance upon uncorrected or outdated warrant list or similar police records. 45 ALR4th 550.

Officer’s ruse to gain entry as affecting admissibility of plain-view evidence — modern cases. 47 ALR4th 425.

Search and seizure: necessity that police obtain warrant before taking possession of, examining, or testing evidence discovered in search by private person. 47 ALR4th 501.

Eavesdropping on extension telephone as invasion of privacy. 49 ALR4th 430.

Propriety of state or local government health officer’s warrantless search — post-Camara cases. 53 ALR4th 1168.

Seizure of books, documents, or other papers under search warrant not describing such items. 54 ALR4th 391.

Search and seizure: reasonable expectation of privacy in public restroom. 74 ALR4th 508.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 ALR4th 536.

Propriety of execution of search warrant at nighttime. 41 ALR5th 171.

Validity of search or seizure of computer, computer disk, or computer peripheral equipment. 84 ALR5th 1.

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 ALR5th 1.

Federal and state constitutions as protecting prison visitor against unreasonable searches and seizures. 85 ALR5th 261.

Constitutionality of secret video surveillance. 91 ALR5th 585.

Expectation of privacy in internet communications. 92 ALR5th 15.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 ALR5th 557.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid. 103 ALR5th 463.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building. 104 ALR5th 165.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure. 105 ALR5th 1.

Odor detectable by unaided person as furnishing probable cause for search warrant. 106 ALR5th 397.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale — state cases. 109 ALR5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale — state cases. 111 ALR5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance — state cases. 112 ALR5th 429.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — state cases. 113 ALR5th 517.

Validity of warrantless search of other than motor vehicle or occupant of vehicle based on odor of marijuana — state cases. 122 ALR5th 439.

Validity of warrantless search of motor vehicle driver based on odor of marijuana — State cases. 123 ALR5th 179.

Validity of search conducted pursuant to parole warrant. 123 ALR5th 221.

Search and seizure: reasonable expectation of privacy in side yards, 69 ALR6th 275.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — pretrial motions — suppression motions where warrant was involved, 72 ALR6th 1.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying homicide and assault offenses, 72 ALR6th 437.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — underlying sexual offenses, 74 ALR6th 69.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure. 92 ALR6th 1

Fourth amendment as protecting prisoner against unreasonable searches or seizures. 32 ALR Fed. 601.

Construction and application of “national security” exception to fourth amendment search warrant requirement. 39 ALR Fed. 646.

Authority of United States officials to conduct inspection or search of American registered vessel located outside territorial waters of United States. 40 ALR Fed. 402.

Admissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative. 49 ALR Fed. 511.

Sufficiency of description of business records under fourth amendment requirement of particularity in federal warrant authorizing search and seizure. 53 ALR Fed. 679.

Validity, under federal constitution, of search conducted as condition of entering public building. 53 ALR Fed. 888.

Aerial observation or surveillance as violative of fourth amendment guaranty against unreasonable search and seizure. 56 ALR Fed. 772.

Defense of good faith in action for damages against law enforcement official under 42 USC 1983, providing for liability of person who, under color of law, subjects another to deprivation of rights. 61 ALR Fed. 7.

Propriety, under 287(a)(1) of Immigration and Nationality Act (8 USCS 1357(a)(1)), of warrantless interrogation of alien, or person believed to be alien, as to alien’s right to be or to remain in United States. 63 ALR Fed. 180.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force. 66 ALR Fed. 119.

Admissibility of evidence obtained by unconstitutional search in proceedings under Occupational Safety and Health Act (29 USCS 651 et seq.). 67 ALR Fed. 724.

When do facts shown as probable cause for wiretap authorization under 18 USC 2518(3) become “stale”. 68 ALR Fed. 953.

Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 69 ALR Fed. 522.

Use of electronic tracking device (beeper) to monitor location of object or substance other than vehicle or aircraft as constituting search violating Fourth Amendment. 70 ALR Fed. 747.

Fourth amendment as prohibiting strip searches of arrestees or pretrial detainees. 78 ALR Fed. 201.

Validity of warrantless search under extended border doctrine. 102 ALR Fed. 269.

Sufficiency of information provided by anonymous informant to provide probable cause for federal search warrant — cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (U.S. 1983). 178 ALR Fed. 487.

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (U.S. 1970). 182 ALR Fed. 467.

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale. 187 ALR Fed. 415.

Validity of warrantless search of motor vehicle based on odor of marijuana — Federal cases. 188 ALR Fed. 487.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was indication that informant provided reliable information to police in past — Cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 1983 U.S. LEXIS 54 (U.S. 1983). 196 ALR Fed. 1.

Section 15. Prohibited State Action.

No bill of attainder or ex post facto law shall be passed. No law impairing the obligation of contracts, and no law making any irrevocable grant of special privileges or immunities shall be passed. No conviction shall work corruption of blood or forfeiture of estate.

Opinions of attorney general. —

The Utility Reimbursement Law is constitutional. 1961 Alas. Op. Att'y Gen. No. 12.

Notes to Decisions

Analysis

I.General Consideration

Application of “slayer statute” did not result in “forfeiture of estate”. —

Application of AS 13.12.803 , the slayer statute, to a son convicted of negligent homicide of his father did not result in a “forfeiture of estate”; substantively, the law was clear that the “forfeiture of estate” clause was not implicated by the slayer rule, which did not prevent the slayer from inheriting in general, only from inheriting from the slayer’s victim. Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Application of the slayer rule does not actually cause a forfeiture, because the offender did not own the property at the time of the homicide; he merely had an expectancy interest; by killing the decedent, the slayer prevents the property interest from vesting in himself. Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Slayer statute distinguished from attainder. —

The slayer statute, AS 13.12.803 , differs from the effect of attainder in that it generally results in the estate going to the other heirs, not to the government. Blodgett v. Blodgett (In re Estate of Blodgett), 147 P.3d 702 (Alaska 2006).

Applied in

Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

Quoted in

State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981); Falke v. Fairbanks N. Star Borough, 648 P.2d 597 (Alaska 1982); Stepanov v. Homer Elec. Ass'n, 814 P.2d 731 (Alaska 1991); Underwood v. State, 881 P.2d 322 (Alaska 1994); Alford v. State, 195 P.3d 118 (Alaska 2008).

Stated in

Hood v. State, Workmen's Comp. Bd., 574 P.2d 811 (Alaska 1978).

Cited in

Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975); Union Oil Co. v. Department of Natural Resources, 574 P.2d 1266 (Alaska 1978); Elstad v. State, 599 P.2d 137 (Alaska 1979); Sanford v. State, 24 P.3d 1263 (Alaska Ct. App. 2001); Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070 (Alaska 2005); Kowalski v. State, 426 P.3d 1148 (Alaska Ct. App. 2018).

II.Ex Post Facto Laws

Ex post facto law defined. —

An ex post facto law is a law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed. Danks v. State, 619 P.2d 720 (Alaska 1980).

Constructed with federal ex post facto provision. —

Supreme court of Alaska has never endorsed federal ex post facto analysis as superseding or limiting its independent consideration of Alaska’s ex post facto prohibition, nor has the court indicated that federal interpretation of the federal ex post facto prohibition prevents it from reaching a different, and more protective, result under the Alaska constitution. Doe v. State, 189 P.3d 999 (Alaska 2008), reaff'd, 297 P.3d 885 (Alaska 2013).

Constitutional prohibition broader than statutory prohibition. —

The prohibition against ex post facto laws has been held to be broader than the prohibition against retrospective civil legislation contained in statutes like AS 01.10.090 . Parker v. State, 667 P.2d 1272 (Alaska Ct. App. 1983).

Time-barred criminal child abuse claims not revived. —

Legislature, in enacting AS 09.10.065 (4), did not attempt to revive time-barred criminal child sexual abuse claims, because the prosecution of a lapsed criminal claim would constitute an ex post facto law. Catholic Bishop of N. Alaska v. Does, 141 P.3d 719 (Alaska 2006).

Extension of criminal limitation period constitutional. —

Extension of a criminal statute of limitations before the original period of limitation has run is not an unconstitutional ex post facto law under the constitutions of either Alaska or the United States. State v. Creekpaum, 753 P.2d 1139 (Alaska 1988).

Judicial decisions. —

Constitutional prohibitions on ex post facto legislation are inapplicable to judicial decisions. State v. Coon, 974 P.2d 386 (Alaska 1999), overruled in part, State v. Sharpe, 435 P.3d 887 (Alaska 2019).

Restitution order. —

In a robbery case, retrospective application of AS 12.55.045 violated the prohibition against ex post facto laws. The trial court was directed to apply the version of the restitution statute that existed at the time defendant committed the robbery. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

Determining habitual offender status. —

Use of a conviction obtained before an enhanced punishment statute was enacted to determine if a defendant was a habitual offender under that statute did not violate this section because the statute provided a stiffened penalty for the latest crime which is considered aggravated because of the repetition involved. Danks v. State, 619 P.2d 720 (Alaska 1980).

Application of rule of evidence. —

The prohibition against ex post facto laws did not bar application of a recently enacted evidence rule at the trial of a lawsuit based on events that pre-dated the enactment of the rule. Allen v. State, 945 P.2d 1233 (Alaska Ct. App. 1997).

Application of three-year license revocation provision of AS 28.15.181(b) to defendant whose prior two OMVI (operating a motor vehicle while under the influence of intoxicating liquor or drugs) convictions were in 1974 and 1976 did not violate the constitutional prohibitions against ex post facto laws. Carter v. State, 625 P.2d 313 (Alaska Ct. App. 1981).

Release on bail prior to sentencing. —

The 1982 amendment of AS 12.30.040(b) , effective January 1, 1983, which would have prevented defendant from posting bail prior to sentencing, did not apply since defendant was arrested prior to January 1, 1983, even though conviction occurred after that date. Parker v. State, 667 P.2d 1272 (Alaska Ct. App. 1983).

Law merely altering convict’s circumstances. —

Although defendant committed his crime before AS 33.30.031(a) was amended to permit the Department of Corrections to contract with private out-of-state prisons, applying the law to defendant did not violate the constitutional prohibition against ex post facto laws, because AS 33.30.031(a) did not punish defendant for an act previously committed, which was innocent when done, nor make the punishment for his crime more burdensome, nor deprive him of any defense that was available when he killed his victim. The fact that a statute alters a convicted person’s circumstances to his or her disadvantage does not show an ex post facto violation. Hertz v. State, 22 P.3d 895 (Alaska Ct. App. 2001).

Statute limiting felons permanent fund dividends. —

AS 43.23.005(d) , which makes incarcerated felons ineligible for permanent fund dividends, does not violate the ex post facto clause of either the United States or the Alaska Constitutions. State v. Anthony, 816 P.2d 1377 (Alaska 1991).

Registration of sex offenders. —

Alaska Sex Offender Registration Act, 1994 Alaska Sess. Laws 41, is non-punitive and thus its retroactive application does not violate the prohibition against ex post facto laws set out in U.S. Const. art. I, § 10, cl. 1; the Act is clearly intended as a civil, non-punitive means of identifying previous offenders for the protection of the public, and any adverse effects to registrants do not constitute a significant affirmative disability or restraint to render the Act effectively punitive. Smith v. Otte, 538 U.S. 34, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), (reversing Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Fact that the Alaska Sex Offender Registration Act, 1994 Alaska Sess. Laws 41, is partially codified in the criminal procedure code is not sufficient to support a conclusion that the legislative intent was punitive for purposes of an ex post facto analysis. Smith v. Otte, 538 U.S. 34, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), (reversing Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Although the duty to register under the sex offender registration statute is clearly retrospective, since the legislature’s intent to promote public welfare is a valid regulatory goal, and since the duties imposed on a sex offender by the statute do not indicate that the legislature had a punitive intent, the duty to register does not violate the prohibition against ex post facto legislation. Patterson v. State, 985 P.2d 1007 (Alaska Ct. App. 1999), overruled in part, Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Where appellant was charged in 1985 and pleaded no contest to first-degree sexual abuse of a minor and second-degree sexual abuse of a minor before the Alaska Sex Offender Registration Act (ASORA), AS 12.63.010 , was enacted, application of ASORA imposed burdens that had the effect of adding punishment beyond what could be imposed when the crime was committed in violation of the ex post facto clause of Alaska Const., art. I, § 15; ASORA’s registration requirement did not apply to persons who committed their crimes before ASORA became effective. Doe v. State, 189 P.3d 999 (Alaska 2008), reaff'd, 297 P.3d 885 (Alaska 2013).

Sex offender registration is a form of punishment for ex pose facto purposes, and thus the registration requirement cannot be imposed on defendants whose sexual offense predated enactment of the law. Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008).

Application of amendments to Alaska’s Sex Offender Registration Act, AS 12.63.010 et seq., to crimes committed before the amendments were effective violate this provision. In a prior two to one decision, the Alaska Supreme Court held the retroactive application of the amendments was an ex post facto violation; further, Alaska R. App. P. 106, adopted after the Supreme Court’s prior decision and stating a two-to-one decision, did not establish binding precedent, and did not apply retroactively to the prior decision. State v. Doe, 297 P.3d 885 (Alaska), modified, — P.3d — (Alaska 2013).

Alaska Sexual Offender Registration Act, AS 12.63.010 12.63.100 , has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the Act under the Ex Post Facto Clause of the Alaska Constitution, but they do not preclude imposing registration duties on out-of-state offenders who are present in the state. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

Retroactive application of legislation affecting Medicaid eligibility. —

State did not err by temporarily denying a mother’s Medicaid application filed under AS 47.07.020(m) because she had transferred funds to her son in February 2007 under then-existing Medicaid eligibility rules. The legislature’s retroactive change to the rules was valid because the prohibition against ex post facto laws concerned the retroactive application of penal statutes. Pfeifer v. State, 260 P.3d 1072 (Alaska 2011).

Retroactive legislation held violation of contracts clause. —

Amendment of the Alaska Wage and Hour Act to retroactively exempt pilots from the act’s overtime compensation provision, AS 23.10.060 , was an unconstitutional taking of the pilots’ overtime wages under this provision. Elimination of the pilots’ claims for unpaid overtime by the retroactive removal of existing contract rights from one party in favor of another who clearly violated existing law was manifestly unfair and violated the contracts clause. Hageland Aviation Servs. v. Harms, 210 P.3d 444 (Alaska 2009).

Medical parole. —

In an appeal that involved an ex post facto challenge to the special medical parole statute, the appellate court concluded that the expansion of the statutory exclusion in 2003 simply returned appellant to the position he was in at the time he committed his 1984 offense, before special medical parole was enacted. Because the exclusion did not constitute additional punishment for appellant's underlying crime, the appellate court rejected appellant's ex post facto claim. Baker v. State, — P.3d — (Alaska Ct. App. Oct. 11, 2017) (memorandum decision).

III.Obligation of Contracts

The maximum rate table in AS 23.30.175(a) , specifying rates of workmen’s compensation for disability or death, does not impair obligations under an employer’s insurance contract although it ties compensation payments to an unknown variable, Alaska’s future average weekly wage. Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979).

The maximum rate table in AS 23.30.175 prospectively phases in an increase. It has no retroactive effect because it does not grant increases to claimants injured before the new maximum rates were passed. Wien Air Alaska v. Arant, 592 P.2d 352 (Alaska 1979).

IV.Special Privileges and Immunities

Municipal immunity. —

This section, which provides in part that “no law making any irrevocable grant of special privileges or immunities shall be passed,” does not bar the legislature from granting to municipalities all rights and immunities that are not also held by private entities; otherwise, municipalities would lose their power to govern. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

AS 09.65.070(d)(1) , which confers immunity to municipalities for liability arising from safety inspections of private property, is constitutional. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Collateral references. —

16B Am.Jur.2d, Constitutional Law, § 667 et seq.

16A C.J.S., Constitutional Law, §§ 424 to 426, 561 et seq.

Prospective or retroactive operation of overruling decision. 10 ALR3d 1371.

Long-arm statutes: retrospective operation of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated acts or transactions. 19 ALR3d 138.

Divorce: Retrospective effect of statute prescribing grounds of divorce. 23 ALR3d 626.

Statutory change of age of majority as affecting preexisting status or rights. 75 ALR3d 228.

Section 16. Civil Suits; Trial by Jury.

In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law. The legislature may make provision for a verdict by not less than three-fourths of the jury and, in courts not of record, may provide for a jury of not less than six or more than twelve.

Notes to Decisions

The right to a jury trial in certain civil trials is guaranteed by the 7th amendment to the United States Constitution and this section. Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Right guaranteed where part of relief sought is damages. —

Where part of the relief sought is compensatory and punitive damages, this section guarantees the parties the right to a jury trial. Loomis Elec. Protection v. Schaefer, 549 P.2d 1341 (Alaska 1976).

Party must request jury trial. —

A party to a proceeding adjudicating ownership of personal property should be entitled to a jury trial; however, in civil cases a party does not obtain a jury trial unless he makes an appropriate request. Keltner v. Curtis, 695 P.2d 1076 (Alaska 1985).

Where expenses burdensome. —

Right to a jury trial does not include the right to be free from financial disincentives that might persuade the parties not to seek the jury trial to which they are entitled. Evans v. State, 56 P.3d 1046 (Alaska 2002).

Right to jury trial not waived by conditionally applying for entry of default. —

Although the courts follow the weight of authority in concluding that there is no constitutional right to a jury following default, the protectiveness historically accorded the jury trial right compels the statement that a party may not forfeit that right inadvertently or without prior notice; therefore, a party who applies for default, while expressly reserving the right to a jury trial on damages, does not automatically forfeit the right. Haines v. Comfort Keepers, Inc., 393 P.3d 422 (Alaska 2017).

It was an abuse of discretion to grant a personal representative's application for default while denying the condition on which it was based, retaining his right to a jury trial, because his application for default was expressly conditioned on keeping a jury trial; the superior court was not bound to accept the condition and could have denied it and required the case to proceed to trial, but the representative should not have been deprived of a jury trial when he expressly attempted to preserve it. Haines v. Comfort Keepers, Inc., 393 P.3d 422 (Alaska 2017).

No right to jury trial in administrative appeal. —

Appeal from the Department of Labor and Workforce Development's determination is authorized by AS 23.20.445 , which permits superior court review of the decision of the Department's appeal tribunal; there was no right to a jury trial in such an appeal because administrative appeals arose under statute, plus the legislature set forth procedures for such appeals in AS 22.10.020(d) , and they do not provide for a jury trial. Levi v. State, 433 P.3d 1137 (Alaska 2018).

Damages caps. —

Damages caps on noneconomic and punitive damages under AS 09.17.010 and 09.17.020 do not violate Alaska Const. art. I, § 16, or the Seventh Amendment to the United States Constitution.Evans v. State, 56 P.3d 1046 (Alaska 2002).

Non-economic damages cap does not violate the constitutional right to a trial by jury because the cap does not intrude on the jury’s fact-finding function but rather represents a policy decision that is applied after the jury’s determination. The jury must still make a determination of the amount of damages to be awarded, and the cap is applied only in those cases where the jury determines that the damages should be higher than the cap; the law setting a limit on allowable damages does not destroy the jury’s role in awarding damages, but merely limits it. L.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009).

Allocation of half of punitive damages award to state. —

The statutory provision requiring that fifty percent of punitive damages award be deposited in the general fund of the state, AS 09.17.020(j) , does not violate substantive due process, nor does it result in an unconstitutional taking. Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 807 (Alaska 2005).

Child-in-need-of-aid proceedings. —

Alaska Const. art. I, § 16 does not provide a right to a jury trial in child-in-need-of-aid proceedings. Alyssa B. v. Dep't of Health & Social Servs., 123 P.3d 646 (Alaska 2005).

No jury trial for discharged teacher. —

A dismissed tenured school teacher is not entitled, either explicitly or impliedly, to a jury trial under either former AS 14.20.205 [see now AS 14.20.180(d) ] or the Constitution of Alaska. Fairbanks N. Star Borough Sch. Dist. v. Duncan, 878 P.2d 641 (Alaska 1994).

Adherence to contractual grievance procedures. —

When an employee enters into a contract that contains grievance procedures, it is not a denial of the right to a jury trial to require the employee to follow those procedures. Diedrich v. City of Ketchikan, 805 P.2d 362 (Alaska 1991).

Reformation of contract. —

Reformation of contract is an equitable, not legal, determination and therefore one for the court, not the jury, to decide; and where the court refused to reform the contract, plaintiff was not entitled to a jury trial under this section. Alaska N. Dev. v. Alyeska Pipeline Serv. Co., 666 P.2d 33 (Alaska 1983), cert. denied, 464 U.S. 1041, 104 S. Ct. 706, 79 L. Ed. 2d 170 (U.S. 1984).

There is no constitutional right to a trial by jury to determine proper tax assessments. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Proceedings to levy and collect taxes are not suits at common law. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Not required in evidentiary hearing related to statute of limitations. —

No violation of the right to jury trial arose from the use of an evidentiary hearing to resolve factual questions underlying statutes-of-limitations issues. Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013).

Employee’s overtime and derivative claims award was not error because (1) the award did not amend a jury’s findings, and (2) an employer’s right to a jury trial was not denied, since the employer waived a jury on this issue. Brown v. Knowles, 307 P.3d 915 (Alaska 2013).

Claim for a prescriptive easement. —

The request for an injunction against the obstruction of a roadway which recognized a prescriptive easement was akin to the quiet title action and thus a claim in equity and not in law, so that plaintiffs were not entitled to a jury trial of right. The Alaska Constitution preserves a jury trial only for those causes of action which are legal, and not equitable in nature, and a claim for a prescriptive easement, like a claim for adverse possession, is in the nature of an equitable claim, historically tried in the courts of equity. McGill v. Wahl, 839 P.2d 393 (Alaska 1992).

Equitable action to set aside foreclosure. —

Junior lienholder was not entitled to a jury trial on an action to set aside a foreclosure because it was equitable in nature, even though the complaint also set forth a cause of action for abuse of process. Young v. Embley, 143 P.3d 936 (Alaska 2006).

No right to jury trial in equity actions. —

The estranged wife and a girlfriend of the deceased engaged in litigation regarding real property owned by the deceased to which each had a claim. The girlfriend’s requests to have various issues involved in the litigation decided by jury were properly denied because the Alaska constitution does not provide for the right to a jury in equity proceedings. Richardson v. Estate of Berthelot, — P.3d — (Alaska Jan. 16, 2013) (memorandum decision).

Jury trial in action based on alleged violation of AS 18.80.220(a)(1) . —

In a civil action based upon an alleged violation of AS 18.80.220(a)(1) , which relates to discriminatory employment practices, the parties are entitled to a jury trial. Loomis Elec. Protection v. Schaefer, 549 P.2d 1341 (Alaska 1976).

Reasoning of Beacon Theatres v. Westover adopted. —

The reasoning of Beacon Theatres v. Westover , 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959), which addressed federal procedure and the federal right to a jury trial, and which held that when a case involves both legal and equitable claims, the facts common to such claims must be tried to a jury if a proper demand is made, is adopted in interpreting Alaska Civ. Rule 38 and this section. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

Where the state sought injunctive and restitutory relief only, such relief being equitable, defendant was not entitled to a jury trial and the lower court thus did not err in refusing his jury trial demand. State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

Strict liability commercial fishing violations. —

Although the strict liability commercial fishing violation statute, AS 16.05.722 , provides for forfeitures and fines which exceed the monetary threshold set forth in this section, prosecutions of violations are not “civil cases” entitled to trial by jury; instead, they are minor criminal cases. State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738 (Alaska 1998).

Jury trial mandated for prosecutions of commercial fishing violations under AS 16.05.722 . —

Prosecutions of strict liability commercial fishing violations under AS 16.05.722 , in which a fine greater than $250 is sought, are required by this section to be tried to a jury, and, insofar as AS 16.05.722 (c) is inconsistent with this conclusion, it is unconstitutional. State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738 (Alaska 1998).

Waiver of the jury trial right may be implied from a party’s post-demand conduct. Frank v. Golden Valley Elec. Ass'n, 748 P.2d 752 (Alaska 1988).

It was error for the trial court to “deem waived” the constitutionally guaranteed right to trial by jury, as a matter of course, based solely upon plaintiff’s failure to file jury instructions within the time provided by the court’s pretrial order. Frank v. Golden Valley Elec. Ass'n, 748 P.2d 752 (Alaska 1988).

Jury trial not waived. —

Defendant did not waive her constitutional right to a jury trial where she did not receive adequate notice that by raising affirmative defenses to the eviction action she would waive a jury trial on the merits of her damages claims. Chilton-Wren v. Olds, 1 P.3d 693 (Alaska 2000).

Test for distinguishing functions of jury and court. —

The terminology and test used by the courts to distinguish between the functions of the jury and the court is whether a particular issue involves a question of fact or a question of law. If the former, it is generally decided by the jury; if the latter, by the court. Taylor v. Interior Enters., 471 P.2d 405 (Alaska 1970).

Whether there is a question of fact is a question of law. —

When the court determines whether there is a question of fact to be presented to the jury, the court is deciding a question of law, i.e., whether as a matter of law, there can or cannot be any legitimate question as to the fact which will require jury determination. It is in the exercise of this function of the court that the basic distinction arises between a question of fact and a question of law. Taylor v. Interior Enters., 471 P.2d 405 (Alaska 1970).

Questions of fact may not be re-examined by court. —

Where there is a trial by jury, questions of fact must be decided by the jury and may not be re-examined by the court. Taylor v. Interior Enters., 471 P.2d 405 (Alaska 1970).

Criterion for determining sufficiency of evidence for jury. —

In deciding whether the evidence is sufficient to raise a question of fact to be presented to the jury, the court applies the criterion of whether there is room for a difference of opinion among reasonable men as to the factual issue in controversy. If there is, the issue is submitted to the jury for its determination. If not, the court decides the issue without reference to the jury. Taylor v. Interior Enters., 471 P.2d 405 (Alaska 1970).

Power of removing factual issues from jury. —

The courts have exercised the power of removing from consideration by a jury factual issues in a case where the court decides there is insufficient evidence to raise a question of fact to be presented to the jury. Taylor v. Interior Enters., 471 P.2d 405 (Alaska 1970).

A party’s right to a jury trial will be violated by a summary judgment order only when the summary judgment is improperly granted — that is, when a genuine issue of material fact exists. Christensen v. NCH Corp., 956 P.2d 468 (Alaska 1998).

Proper grant of summary judgment. —

A proper grant of summary judgment does not infringe jury trial rights. Falke v. The Council of the City of Fairbanks, 960 P.2d 589 (Alaska 1998).

Section does not preclude review of rulings on motions to set aside awards. —

Nothing in this section precludes appellate review of the trial judges’ rulings on motions to set aside awards. Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972).

Applicability of fair cross-section standard to civil jury selections. —

See Malvo v. J. C. Penney Co., 512 P.2d 575 (Alaska 1973).

Applied in

State v. Kaatz, 572 P.2d 775 (Alaska 1977); Gold Bondholders Protective Council v. Atchison, T. & S.F. Ry., 658 P.2d 776 (Alaska 1983); Hall v. Morozewych, 686 P.2d 708 (Alaska 1984); Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988).

Quoted in

Knudsen v. City of Anchorage, 358 P.2d 375 (Alaska 1960); Patrick v. Sedwick, 391 P.2d 453 (Alaska 1964); Pennington v. Snow, 471 P.2d 370 (Alaska 1970); Martinez v. Bullock, 535 P.2d 1200 (Alaska 1975); Jeffries v. Glacier State Tel. Co., 604 P.2d 4 (Alaska 1979); DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919 (Alaska 2002); DeNardo v. Calista Corp., 111 P.3d 326 (Alaska 2005); Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073 (Alaska 2015).

Cited in

Lee v. State, 490 P.2d 1206 (Alaska 1971); Williams v. Williams, 129 P.3d 428 (Alaska 2006); I.J. v. State, 182 P.3d 643 (Alaska Ct. App. 2008); Hertz v. Macomber, 297 P.3d 150 (Alaska 2013).

Collateral references. —

47 Am.Jur.2d, Jury, §§ 12 to 54.

How to obtain jury trial in eminent domain: waiver. 12 ALR3d 7.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense. 16 ALR3d 1373.

Right in equity suit to jury trial of counterclaim involving legal issue. 17 ALR3d 1321.

Issues in garnishment as triable to court or to jury. 19 ALR3d 1393.

Statute reducing number of jurors as violative of right to trial by jury. 47 ALR3d 895.

Former law enforcement officers as qualified jurors in criminal cases. 72 ALR3d 958.

Right to jury trial on motion to vacate judgment. 75 ALR3d 894.

Validity and efficacy of accused’s waiver of unanimous verdict. 97 ALR3d 1253.

Waiver, after not guilty plea, of jury trial in felony case. 9 ALR4th 695.

Validity of agreement, by stipulation or waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted. 15 ALR4th 213.

Right to jury trial in stockholder’s derivative action. 32 ALR4th 1111.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury. 37 ALR4th 304.

Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony. 46 ALR4th 1047.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations. 48 ALR4th 367.

Paternity proceedings: right to jury trial. 51 ALR4th 565.

Right to jury trial in action for retaliatory discharge from employment. 52 ALR4th 1141.

Right to jury trial in state court divorce proceedings. 56 ALR4th 955.

Validity of law or rule requiring state court party who requests jury trial in civil case to pay costs associated with jury. 68 ALR4th 343.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding. 70 ALR4th 1119.

Validity, construction, and effect of statute limiting amount recoverable in dram shop action. 78 ALR4th 542.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings. 102 ALR5th 227.

Complexity of civil action as affecting seventh amendment right to trial by jury. 54 ALR Fed. 733.

Section 17. Imprisonment for Debt.

There shall be no imprisonment for debt. This section does not prohibit civil arrest of absconding debtors.

Notes to Decisions

The gist of the offense under AS 28.35.026 is failure to return an automobile with a conscious purpose to injure the owner and not mere failure to pay the rental price. Hence, the constitutional prohibition against imprisonment for debt has not been violated. Speidel v. State, 460 P.2d 77 (Alaska 1969).

Collateral references. —

16B Am.Jur.2d, Constitutional Law, §§ 674 to 680.

16A C.J.S., Constitutional Law, §§ 710 to 719.

Constitutional provision against imprisonment for debt as applicable to nonpayment of tax. 48 ALR3d 1324.

Constitutionality of “bad check” statute. 16 ALR4th 631.

Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like — modern cases. 79 ALR4th 232.

Section 18. Eminent Domain.

Private property shall not be taken or damaged for public use without just compensation.

Cross references. —

For compensation and damages awarded for property taken by eminent domain, see AS 09.55.330 .

Notes to Decisions

Analysis

I.General Consideration

Construction. —

The supreme court has liberally construed this section in favor of the private property owner. Alsop v. State, 586 P.2d 1236 (Alaska 1978).

This section is to be interpreted liberally in favor of the property owner. Ehrlander v. Dept. of Transp. & Pub. Facilities, 797 P.2d 629 (Alaska 1990).

State action not directly or immediately affecting property. —

Private owners were entitled to full compensation for all damages caused when a landslide, which started on state property, entered their property. Bakke v. State, 744 P.2d 655 (Alaska 1987).

Compensation for personal property. —

Reading Alaska Const., art. I, § 18, and Alaska Const., art. I, § 1, in paria materia, and the generally recognized principle that the constitution and legislative enactments in implementation thereof are to be liberally construed, the supreme court found no clear legislative intent to have been manifested that personal property taken or damaged by public use should not be justly compensated. Stroh v. Alaska State Hous. Auth., 459 P.2d 480 (Alaska 1968).

Chattel as real estate. —

The rule is that for a chattel to become a fixture and be considered as real estate, three prerequisites must unite: There must be an annexation to the realty of something appurtenant thereto; the chattel must have adaptability or application as affixed to the use for which the real estate is appropriated; and there must be an intention of the party to make the chattel a permanent accession to the freehold. Intention, the third of the three factors said to comprise the general test for determining whether an object has become a fixture, refers to the intent of the parties that the object being introduced onto the realty become a permanent accession thereto. Stroh v. Alaska State Hous. Auth., 459 P.2d 480 (Alaska 1968).

Carpeting constituted personalty at the time of the taking, and party was entitled to recover the actual market value thereof at the time of the taking. Stroh v. Alaska State Hous. Auth., 459 P.2d 480 (Alaska 1968).

Attorney’s services are “property” within the meaning of this section. De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Allocation of percentage of punitive damages to state. —

Where a worker was awarded punitive damages in her wrongful discharge and defamation suit, because whether a claim was “property” was defined by the laws in existence when the claim arose, it followed that the worker’s claim for punitive damages could be protected property only insofar as permitted by AS 09.17.020(j) , and the allocation of 50 percent of the punitive damages award to the State was not an unconstitutional taking. Anderson v. State ex rel. Cent. Bering Sea Fishermen's Ass'n, 78 P.3d 710 (Alaska 2003).

Expectation of renewal of a lease is not a compensable interest. Department of Highways v. Salzwedel, 596 P.2d 17 (Alaska 1979).

Unilateral contract changes by state in negotiations with public employees. —

Unilateral contract changes imposed by the state during an impasse in negotiations with public employees, which changes included an extension of work hours, did not deprive the employees of a property interest protected by this section. Alaska Pub. Emples. Ass'n v. State, Dep't of Admin., 776 P.2d 1030 (Alaska 1989).

Oil well data constitute trade secrets protected under both the Alaska and the United States Constitutions. State, Dep't of Nat. Res. v. Arctic Slope Reg'l Corp., 834 P.2d 134 (Alaska 1991).

One cannot “physically” occupy or invade intangible property; therefore, there cannot be a per se taking of oil well data. State, Dep't of Nat. Res. v. Arctic Slope Reg'l Corp., 834 P.2d 134 (Alaska 1991).

Disclosure of well data to the Department of Natural Resources following an initial confidentiality period as provided in AS 31.05.035(c) does not constitute an unconstitutional taking. State, Dep't of Nat. Res. v. Arctic Slope Reg'l Corp., 834 P.2d 134 (Alaska 1991).

Public municipal utilities system. —

This section did not apply to the sale of a municipal utilities system since the system was public rather than private property, and the fact that property owners in the municipality funded the system through tax assessments did not make them de facto owners. Falke v. The Council of the City of Fairbanks, 960 P.2d 589 (Alaska 1998).

Proceedings distinguished from ordinary civil actions. —

This constitutional guarantee, together with the peculiar in rem nonadversary pleadings characteristic of condemnation proceedings, distinguish these proceedings from ordinary civil actions. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Accrual of cause of action. —

When the taking of access only became apparent at the time the state turned down an adjoining landowner’s request for access, the cause of action, in the nature of inverse condemnation, accrued at that point. State v. 18018 Square Feet, 621 P.2d 887 (Alaska 1980).

Burden of proof. —

The burden of proving that projects should be considered as one for valuation purposes was on the state, the party asserting the claim. State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

Rules pertaining to condemnation actions. —

Alaska’s procedural rules pertaining to condemnation actions do not provide a burden of pleading which could be looked to as determinative of the companionate burden of persuasion. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Procedural rules involving the concept of risk of failure to persuade are inappropriate in a condemnation proceeding where the sole issue is determination of just compensation. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Order of proof and order of final arguments. —

The separate questions of order of proof and order of final arguments of counsel in condemnation proceedings should be left to the discretion of the trial judge. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

The burden of production facet of burden of proof, rather than the risk of non-persuasion aspect, is the more meaningful concept in the trial of a condemnation proceeding. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

The burden in contending that the trial court erred in its determination of just compensation for parcels is especially heavy with respect to condemnation proceedings, where considerable latitude must be accorded the trier of fact due to the complicated nature of property appraisals. State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

Competent evidence of fair market value. —

As to the issue of fair market value, both the condemning agency and the property owners may produce competent evidence of the fair market value of the condemned property. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

For additional notes concerning evidence, see notes under analysis line IV, “Just Compensation.”

Role of expert witness in eminent domain proceedings. —

See Dash v. State, 491 P.2d 1069 (Alaska 1971).

Absent the production of evidence by either party, the triers of fact will determine fair market value solely from the other party’s evidence. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Testimony. —

It is not necessary, in order to give credence to a witness’ opinion of fair market value, to also require him to show that the property and market value are such that the entire purchase price could be expected to be paid at the time of sale. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970).

Sale 15 months after date of taking. —

As to admission into evidence of a sale taking place 15 months after the date of the taking by the state, see Dash v. State, 491 P.2d 1069 (Alaska 1971).

The focal point of the trier of fact’s inquiry is the ascertainment of just compensation. Thus, regardless of whether the condemning agency or the property owner meets a given burden of persuasion, Alaska’s constitutional mandate requires that the owner be awarded just compensation for the property he has lost. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Jury confronted with conflicting opinions as to value. —

In the usual condemnation case, the jury is confronted with conflicting opinions as to value. The jury is not faced with the necessity of finding a particular value or no value at all. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Instructions on burden of proof, in the sense of allocating the risk of failure to persuade the jury, are inappropriate in condemnation actions. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

In a condemnation proceeding, the trial court did not err in refusing to instruct the jury on the subject of burden of proof, where the jury was informed that the exercise of the power of eminent domain is subject to the constitutional requirement of payment of just compensation, and was further instructed that their only concern was the determination of the just compensation to be awarded. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Applied in

Fehir v. State, 739 P.2d 785 (Alaska Ct. App. 1987).

Quoted in

Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980); Ault v. State, 688 P.2d 951 (Alaska 1984); Pfeifer v. State, 260 P.3d 1072 (Alaska 2011).

II.Damage

Section expressly requires compensation for damage, while 5th amendment does not. —

See State v. Hammer, 550 P.2d 820 (Alaska 1976).

Temporary loss of profits during relocation incurred because of the state’s exercise of its eminent domain power in taking the property on which the business was conducted is a damaging of property within this section and must be compensated for. State v. Hammer, 550 P.2d 820 (Alaska 1976).

III.Taking

When taking occurs. —

It is the general rule that a taking does not occur until: (1) Legal title vests in the state, (2) the state enters into actual possession, or (3) the state takes constructive possession either by causing damage to property or by depriving the owner of full beneficial use of his land. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Once an owner is deprived of the economic advantages of legal ownership, a taking has occurred. Grant v. State, 560 P.2d 36 (Alaska 1977).

Although the state is clearly not bound to abide by its construction plans and specifications, it is reasonable for parties negotiating for the sale of the land involved to assume that those plans will be implemented, and where the plans are not implemented, any further economic interference constitutes a second taking for which the state must pay just compensation. Grant v. State, 560 P.2d 36 (Alaska 1977).

The United States supreme court has recognized two classes of per se takings: (1) cases of physical invasion and (2) cases where a regulation denies a landowner of all economically feasible use of the property. When, as here, a case does not fall into either of these categories, courts must engage in a case-specific inquiry to determine whether governmental action effects a taking. The factors which the court should consider are: (1) the character of the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. The legitimacy of the interest advanced by the regulation or land-use decision is also relevant to this inquiry. Anchorage v. Sandberg, 861 P.2d 554 (Alaska 1993).

The mere granting of a right of first refusal to lease city property containing a private easement is not sufficient proof of the city’s intent to extinguish the easement; thus, there was no taking at the time of the granting of the right. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).

Applying a setback requirement to a resident’s property was not a taking without just compensation because the setback requirement was in effect when the resident took possession of the property, so the resident had no lawful property interest in expanding structures on the property in a manner that violated the requirement. Tweedy v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals, — P.3d — (Alaska June 20, 2014), op. withdrawn, — P.3d — (Alaska 2014), sub. op., 332 P.3d 12 (Alaska 2014).

Retroactive legislation held taking. —

Amendment of the Alaska Wage and Hour Act to retroactively exempt pilots from the act’s overtime compensation provision, AS 23.10.060 , was an unconstitutional taking of the pilots’ overtime wages under this provision, and an unconstitutional impairment of the parties’ employment agreement under Alaska Const. art. I, § 15. The pilots had already worked the overtime hours, and by law were entitled to receive the compensation for those hours of work; the retroactive elimination of their claims for unpaid overtime violated the protections afforded by the takings clause. Hageland Aviation Servs. v. Harms, 210 P.3d 444 (Alaska 2009).

State did not err by temporarily denying a mother’s Medicaid application under AS 47.07.020(m) because she had transferred funds to her son. The retroactive application to the Medicaid eligibility rules did not violate the mother’s constitutional right to due process because she received notice and an opportunity to be heard through the fair hearing process; the mother had a mere expectancy of being eligible for Medicaid benefits but no vested property right that could have formed the subject of a taking. Pfeifer v. State, 260 P.3d 1072 (Alaska 2011).

Test where state delay may be taking. —

For the time of valuation to be advanced in the case of an impending condemnation depriving a property owner of the economic advantages of ownership, (1) marketability must be substantially impaired, (2) the condemning authority must have evidenced an unequivocal intention to take the specific parcel of land, (3) the special use of the land by the owner must be acquiring and holding the property for subsequent development and sale, and (4) the owner must have taken active steps to accomplish this purpose. Ehrlander v. Dept. of Transp. & Pub. Facilities, 797 P.2d 629 (Alaska 1990).

Declaration of taking and complaint for condemnation distinguished. —

Under a declaration of taking, title and right to possession pass to the state immediately upon filing and depositing an amount for just compensation, while under a complaint for condemnation this “taking” does not occur until judgment is entered by the court. State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

Per se taking. —

There was no per se taking of plaintiff’s property where, although the decision to deny her grandfather rights terminated her right to use her property as a junkyard, it did leave her with economically feasible use of her property. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

There was no basis for finding a per se taking under Alaska Const. art. I, § 18 because the municipality did not physically invade the homebuilding company’s land and it did not completely deprive the company of all economic value of its land; indeed, the company had constructed houses on many of the lots and sold them to third parties and, moreover, the company made no effort to show that the value of its land was at all altered by the municipality’s actions. Spinell Homes, Inc. v. Municipality of Anchorage, 78 P.3d 692 (Alaska 2003).

Landscaping and requirements for public improvements not a taking. —

Because the homebuilding company had not shown that the requirements for some minimal landscaping and compliance with the municipality’s standard specifications for improvements were conditions or exactions that were not proportional to the subdivisions’ impact, the company’s theory of taking was without merit; thus, there was no taking pursuant to Alaska Const. art. I, § 18. Spinell Homes, Inc. v. Municipality of Anchorage, 78 P.3d 692 (Alaska 2003).

Legitimate government action. —

Plaintiff was not the victim of an unconstitutional taking where her brief was unclear as to exactly what government action she felt amounted to a taking, where the rezoning action was a legitimate government action, where any negative economic impact seemed solely concentrated on fence-building efforts which would have been required under any zoning ordinance, and where the plaintiff only asserted that she purchased the property in order to operate a junkyard after she had filed suit against the borough. Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000).

Taking by necessity. —

Dismissal of landowners’ takings claim under Alaska Const. art. I, § 8, was reversed because the State’s lawful exercise of its police powers to instigate burnouts on private land in order to fight forest fires was public use; the court failed to apply the doctrine of necessity, i.e., evaluate the parties’ evidence in the context of determining whether there was an imminent danger and an actual emergency giving rise to the need for the state’s actions. Brewer v. State, 341 P.3d 1107 (Alaska 2014).

Economic loss minor. —

Where the city prohibited the landowners from developing land within a 20 foot strip setback, there was no compensable taking because the economic loss was minor. R & Y, Inc. v. Municipality of Anchorage, 34 P.3d 289 (Alaska 2001).

Limiting access to vessels able to pass through a culvert six feet in diameter was in effect a taking of such access. Wernberg v. State, 519 P.2d 801 (Alaska 1974).

Where owners received compensation for the taking of their property for construction of a highway, a second taking occurred, separate from the first, when the state decided to redesign the highway; the second taking consisted of a loss of access due to closure of an intersection and due to the limitation of travel on the frontage road to one-way traffic if the settlement or the receipt of the intersection award had been in reliance upon unrestricted access via an intersection which was to be closed with the redesign of the highway. Alsop v. State, 586 P.2d 1236 (Alaska 1978).

Where owners contended that a second taking of their property occurred when the state redesigned the highway for the construction of which their property had been originally taken, closing off an intersection and limiting travel on the frontage road to one-way traffic, in order to recover damages, each of the owners must demonstrate that he or a predecessor in interest had a portion of his property taken for the original construction project, that he or his predecessor relied on construction of the intersection or the two-way frontage road, or both, in settling or receiving an award for their condemnation claims, and that his remaining property had decreased in value as a result of the highway modifications. Alsop v. State, 586 P.2d 1236 (Alaska 1978).

Although the language granting access was erroneously included in the declaration of taking of property for a controlled access facility, a party who purchased the remainder of the adjoining parcel for his insurance business acted reasonably in believing that he would have direct access and was entitled to compensation because he did not receive direct access. State v. 18018 Square Feet, 621 P.2d 887 (Alaska 1980).

Nonabutting owners, whose property has not been taken, cannot claim damages because a more circuitous access route is imposed upon them. Alsop v. State, 586 P.2d 1236 (Alaska 1978).

Changing a frontage road from a two-way street to a one-way street is not by itself a taking. B & G Meats v. State, 601 P.2d 252 (Alaska 1979).

A distinction must be made between loss of access and loss of traffic flow. The latter is not a part of the owner’s interest in his property. Restrictions which merely result in a diversion of traffic away from the property are thus not compensable. B & G Meats v. State, 601 P.2d 252 (Alaska 1979).

Principles which control when claim of taking caused by loss of access is raised. —

See B & G Meats v. State, 601 P.2d 252 (Alaska 1979).

Littoral access. —

The state must justly compensate the property owner when it takes by inverse condemnation a littoral access right. Grant v. State, 560 P.2d 36 (Alaska 1977).

Vacant and unimproved land. —

Institution of condemnation proceedings constitutes a compensable appropriation of vacant and unimproved land, and the property owner is constitutionally entitled to interest dating from the institution of such proceedings. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Under the Alaska statutory scheme, an owner of unimproved or untenanted property is deprived of both investment potential and the possibility of future development the moment a condemnation action commences. Meanwhile, the owner remains liable for property taxes, mortgage payments, and any other expenses incidental to legal ownership. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Appropriation deemed exercise of power of eminent domain. —

Neither the failure of the state to institute a condemnation action nor the owners’ assertion of a claim based on the theory of trespass changed the essential nature of the state’s action in appropriating the owners’ property from one of the exercise of the power of eminent domain. Department of Highways v. Crosby, 410 P.2d 724 (Alaska 1966).

A court appointment compelling an attorney to represent an indigent criminal defendant is a taking of property for which just compensation is required. De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987).

Mere designation of property. —

Municipal assembly’s designation of property as a potential school site was not a taking for which the property owner could recover just compensation, where the assembly’s mere designation was not a concrete indication that the municipality intended to condemn the property. Homeward Bound v. Anchorage Sch. Dist., 791 P.2d 610 (Alaska 1990).

Fishing entry permit not compensable property. —

Under the plain language of AS 16.43.150(e) , fishing entry permit is not compensable property for purposes of takings clauses in the Fifth Amendment, Alaska Const., art. I, § 18, and Alaska Const., art VIII, § 16; therefore, commercial salmon fishers failed to state a takings claim based on regulations which reduced the amount of fish they were able to catch, reducing the value of their entry permits. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Designation as “conservation wetlands” not “taking”. —

A municipality’s designation of certain property as “conservation wetlands” did not deprive the owner of the “economic advantages of ownership” and hence, was not a “taking”; specifically, the findings that the planning and zoning commission had to make prior to development approval of the “conservation wetlands” did not place a significant burden on the owner’s opportunity to develop his property. Zerbetz v. Municipality of Anchorage, 856 P.2d 777 (Alaska 1993).

Rate regulation scheme. —

The institution of a rate regulation scheme by the Alaska public utilities commission which resulted in lower tariff revenues for an oil pipeline did not constitute an unconstitutional taking of the pipeline’s property where there was no showing that the scheme threatened the pipeline’s financial integrity and the argument that the commission took property when it reduced the utilities rate base was without merit, as the pipeline’s rate base does not constitute property. Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343 (Alaska 1992).

Regulations affecting value of shore fishery leases did not result in compensable taking of leases under takings clauses of the Fifth Amendment, Alaska Const., art. I, § 18, and Alaska Const., art. VIII, § 16 because the leases contained language permitting the regulations at issue. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Reasonable investment-backed expectation not found. —

Although landowner may have hoped and expected to obtain a road improvement district, its expectation was always contingent on the agreement of the other landowners in the assessment area. Landowner’s acquisition of these lots and subsequent petitions for improvement districts did not evince a reasonable investment-backed expectation, but rather, a business gamble, which did not pay off when the city purchased the surrounding property for park use and thus blocked the improvement districts. However, this did not rise to the level of a taking. Anchorage v. Sandberg, 861 P.2d 554 (Alaska 1993).

IV.Just Compensation

Measure of just compensation. —

Just compensation is measured by the value of the property taken. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970).

Fair market value is an appropriate measure of the just compensation guaranteed by this section. Dash v. State, 491 P.2d 1069 (Alaska 1971).

The law in Alaska is that “fair market value,” or the price a willing buyer would pay a willing seller for property, is the appropriate measure of “just compensation.” State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

“Fair market value”. —

Fair market value is the price in money that the property could be sold for on the open market under fair conditions between an owner willing to sell and a purchaser willing to buy, with reasonable time allowed to find a purchaser. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970).

One criterion for determining value is what the property is worth on the market — its fair market value, and this is to be determined by a just consideration of all the uses for which the property is suitable. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970); Dash v. State, 491 P.2d 1069 (Alaska 1971).

The highest and most profitable use for which the property is adaptable is to be considered, to the extent that the prospect of demand for such use affects the market value while the property is privately held. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970).

Fair market value is only means to goal. —

Fair market value is usually equated with just compensation, as it provides an objective standard by which to measure the loss to the owner, but fair market value is not the end in itself, but merely a means to achieve the goal of just compensation. Gackstetter v. State, 618 P.2d 564 (Alaska 1980).

The essential difference between market price and market value lies in the premises of intelligence, knowledge and willingness, all of which are contemplated in market value but not in market price. Stated differently, at any given moment of time, market value connotes what a property is actually worth and market price what it may be sold for. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Award of other damages. —

A fair market valuation is only one way to accomplish the task of making the property owner “whole,” and other damage measures may be used when the fair market value measure would not be adequate to make the property owner whole. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).

When other damages allowed. —

There is no reason why an alternative “cost to cure” instruction need be given in the absence of a showing that “fair market value” is an inaccurate measure of the losses suffered by the property owners. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).

Use of statutory formulas. —

Where a taking has occurred and the issue is the awarding of just compensation, such compensation may be determined in an inverse condemnation action using so far as is practicable the statutory requirements and procedural steps set out for eminent domain proceedings. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).

Value of easement destroyed. —

Whether an easement is imposed or destroyed is not significant in determining the value of the easement. In the first case, the servient estate is burdened, which results in a diminution in the estate’s fair market value. In the second case, the dominant estate loses its benefit, which also results in a diminution in the estate’s fair market value. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).

Use of property must be reasonably probable. —

It must be shown that the use for which the property is claimed to be adaptable is reasonably probable. If this cannot be shown, evidence of prospective use must be excluded because it would allow mere conjecture and speculation to become a guide for ascertainment of value, and this is not a permissible method for the judicial ascertainment of truth. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970).

“Best use” evidence. —

See Dash v. State, 491 P.2d 1069 (Alaska 1971).

In determining just compensation, usually measured by the “market value” of the property, the highest and most profitable use for which the land is adaptable may be considered to the extent that the prospective demand for such use affects the property’s present market value. Thus, many courts, including Alaska’s, have allowed evidence of a reasonably probable subdivision to be admitted to prove the adaptability of the land for subdivision use. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Admissibility of subdivision plat. —

Where the adaptability of the land for subdivision use is shown to be reasonably probable, and not too remote or speculative, then a subdivision plat is admissible as illustrating the potential and reasonably probable use. State v. 7.026 Acres, 466 P.2d 364 (Alaska 1970).

A truly speculative or imagined use should not be considered. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Evidence of use as subdivision. —

The majority of courts allow evidence of a potential subdivision only for the limited purpose of showing the adaptability of the land for subdivision purposes. Dash v. State, 491 P.2d 1069 (Alaska 1971).

The courts are much more liberal in admitting evidence of a potential subdivision when some preliminary steps have been taken to develop the land. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Where there is testimony that the highest and best use of the property is as an industrial subdivision, and evidence that other property in the immediate area was subdivided for industrial purposes, the proposed subdivision is not purely conjectual or speculative. Dash v. State, 491 P.2d 1069 (Alaska 1971).

If the land were adaptable for subdivision purposes, it would seem that the potential income to be derived from sales of the subdivided lots would be highly relevant to a determination of the “market value,” especially to the extent that sophisticated investors who make decisions on the basis of income capitalization take part in market transactions. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Capitalization of income, in contexts other than proposed subdivisions, has been recognized as an accepted method of valuation by a number of jurisdictions. Although capitalization of anticipated proceeds from a proposed subdivision necessarily has a speculative element, it still has a direct impact on the property’s market value since it will influence investment decisions and thereby affect supply and demand. Dash v. State, 491 P.2d 1069 (Alaska 1971).

To the extent that the “just compensation” guarantee in this section comprises a notion of fair market value rather than merely the price the property will bring in an imperfect market, income capitalization must be considered particularly apposite. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Even in a market where a parcel’s price is unaffected by its income potential, income capitalization must be considered to have a bearing on “market value.” The danger that market price will not closely reflect market value is enhanced when the property is not currently generating income. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Income capitalization in general and the anticipated use or development method in particular are standard appraisal practices. Dash v. State, 491 P.2d 1069 (Alaska 1971).

An expert’s testimony which capitalized the anticipated rentals from a proposed recreational subdivision to arrive at an estimate of fair market value was properly admitted. Dash v. State, 491 P.2d 1069 (Alaska 1971).

As to admission of expert testimony on market value based on the development costs and income capitalization of a potential subdivision, see Dash v. State, 491 P.2d 1069 (Alaska 1971).

Rule as to special benefits. —

The rule in Alaska is that special benefits to the remainder can only be used to offset severance damages to the remainder. In the event that special benefits exceed severance damages, the landowner is still entitled to receive the full market value of the portion actually taken. Dash v. State, 491 P.2d 1069 (Alaska 1971).

Awarding enhanced value. —

In Alaska, inclusion of value enhancement attributable to the project for which the property is being taken is generally prohibited in determining condemnation awards. This general rule is in accordance with the requirement in the Alaska and United States Constitutions that just compensation be paid for private property taken for public use, since it only prevents a landowner from receiving more value for his property than he would if the government had no use for his land and it was purchased by a private buyer. However, this rule does not preclude an owner from receiving compensation for value added to the property by an unrelated public project which took no portion of the tract involved. State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

An exception to the general prohibition against awarding enhanced value from the project for which a parcel is taken occurs when the parcel was not properly within the scope of the original project but was included in a subsequent enlargement of the project. In those circumstances, a landowner should not be deprived of the value added in the meantime by the proximity of the improvement. State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

A determination in a particular case of whether a parcel is within the original scope of a public project subsequently enlarged to require the taking of the tract is a question for the trier of fact. State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

See note under same catchline, “Burden of proof,” State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980), under analysis line I, above.

Just compensation is not conditioned upon receipt of commensurate value by the state. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Personal property not considered in determining compensation. —

The general rule is to the effect that personal property which is used on land taken by eminent domain cannot be considered in the determination of the compensation. State v. Ness, 516 P.2d 1212 (Alaska 1973).

Tax assessments excluded from evidence. —

The majority rule excludes property tax assessments from evidence in condemnation cases on the rationale that such an assessment is res inter alios acta, notoriously unreliable as a criterion of true value or the opinion of persons not called as witnesses and subject to cross-examination. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

It is almost everywhere the law that the value placed upon a parcel of land for the purposes of taxation by the assessors of the town in which it is situated is no evidence of its value for other than tax purposes. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

AS 29.53.080 does not furnish the basis for the admissibility of tax assessments as evidence in condemnation proceedings. Given the limited purpose of the act, there is no indication that the legislature intended to make tax assessments prima facie evidence of value in condemnation proceedings. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

In view of the special purposes for which tax assessments are made, the fact that there is little likelihood that an owner would contest an under-assessment or an assessment which did not reflect the property’s full value, the potential unreliability of such assessments due to the varied qualifications of assessors, and the fact that such assessments standing alone embody the opinions of persons not called as witnesses and not subject to cross-examination, the admission of property tax assessments as evidence of fair market value in condemnation actions is prohibited. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Alteration of original construction plan. —

When an owner settles or receives a condemnation award in reliance on a construction plan which is implemented and later altered, the owner is entitled to just compensation for any resultant economic damage to the property, provided that a portion of the property was taken for the original construction project, and the remaining property decreased in value as a result of the alteration. The owner’s reliance must be objectively reasonable, based on the documents prepared to resolve the original condemnation action. State v. Lewis, 785 P.2d 24 (Alaska 1990).

Where dirt and gravel used by condemnor. —

Employment of the fair market value test where the property contained dirt and gravel fill which was removed by the condemnor and used elsewhere in the project to its benefit does not preclude the owners from receiving just compensation. It is a basic tenet of eminent domain law that just compensation is determined by what the owner has lost and not by what the condemnor has gained. Gackstetter v. State, 618 P.2d 564 (Alaska 1980).

Value-to-the-taker is not an appropriate measure of just compensation where residential property was taken, even though fill and gravel from the property was utilized by the condemnor. Gackstetter v. State, 618 P.2d 564 (Alaska 1980).

Compensation based on ownership interest established by lease. —

Where, at the time the state condemned land owned by a corporation, the state leased the land and operated an airport on it which the state had built, the corporation’s right to compensation was determined by what it was entitled to under the terms of the lease and, although the lease was ambiguous, it was best interpreted as allowing the lessor to retain all unremovable improvements and, therefore, the corporation was entitled to compensation based on its ownership interest in the land as an airport. State v. Teller Native Corp., 904 P.2d 847 (Alaska 1995).

Certificate that allowed utility to operate in territory. —

Where the public utility commission granted two different utility companies rights to serve a particular city and later found that competition between the utilities was not in the public interest and awarded the territory to appellee utility, the appellant utility company had no compensable property interest in its certificate allowing it to operate in the territory, because the public utility commission, as a condition of issuing the certificate, reserved the right to revoke it for good cause. Tlingit-Haida Reg'l Elec. Auth. v. PUC, 15 P.3d 754 (Alaska 2001).

Valuation date. —

The just compensation requirement of this section is satisfied by fixing the valuation date as of the commencement of the action. Therefore, AS 09.55.330 is constitutional as applied in a case where a lengthy delay (almost 2 years) in payment of compensation follows commencement of the action, the proper remedy for the delay being an award of interest, less any rents and profits derived from the use of the property as compensation to the landowner for the loss of use of the money owed him during the pendency of the action. Lazy Mt. Aviation, Inc. v. Palmer, 618 P.2d 570 (Alaska 1980).

Payment of interest. —

The payment of interest is, in appropriate circumstances, a necessary component of constitutionally guaranteed “just compensation.” Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Before interest can accrue, there must be a “taking.” Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Dates owner entitled to interest. —

This section necessitates that a property owner be compensated for delays incurred between the dates of the government’s taking of property and making payment. If an award were paid immediately upon the taking of the land by the state, no damages to the property owner would ensue. But where, due to the necessity of legal proceedings to ascertain fair market value of property, delays ensue, the property owner is entitled to an adequate sum to reimburse him for the loss of use of the money during the period of such delay. To hold otherwise would constitute a taking of the property without just compensation. Therefore, it is well established that the owner of property is entitled to interest from the date of taking to the date of payment. Russian Orthodox Greek Catholic Church v. Alaska State Hous. Auth., 498 P.2d 737 (Alaska 1972).

Interest from date owner loses economic advantages but not liabilities. —

If as a matter of constitutional law the property owner is entitled to interest from the moment the state takes legal possession, he should, a fortiori, receive interest where he has been deprived of all the economic advantages of legal ownership but is relieved of none of the liabilities. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

There is no statutory provision for payment of interest from the date a condemnation action is instituted where the property owner remains in possession, and it has long been recognized that unless interest is specifically authorized by legislative enactment, it may not ordinarily be assessed against the state in any action. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Since compensation for delays required. —

The 5th amendment to the United States Constitution and this section require that a property owner be compensated for delays incurred between the dates of the government’s taking of property and making payment. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

If an award were paid immediately upon the taking of the land by the state, no damages to the property owner would ensue. But where, due to the necessity of legal proceedings to ascertain fair market value of property, delays ensue, the property owner is entitled to an adequate sum to reimburse him for the loss of use of the money during the period of such delay. To hold otherwise would constitute a taking of the property without just compensation. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Compensation to include expenses necessarily incurred. —

Civil R. 72(k)(4), when construed in the framework of the “just compensation” clauses of the United States and Alaska constitutions, entitles the property owner to be made whole for expenses necessarily incurred in connection with the condemnation of his property. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

This section and the 5th amendment entitle the property owner to be made whole for expenses necessarily incurred in connection with the condemnation of his property. City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975).

Without such a rule, the state forces a property owner to pay a greater portion of the costs of a public project than any other taxpayer must pay by afflicting him with unavoidable expenses of condemnation. Placing such a burden on the property owner is no more just than assessing a levy against him but no others. City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975).

Incidental damages awarded. —

Property owners may be awarded incidental damages for expenditures they made in furtherance of their subdivision development which did not actually increase the fair market value of their land. Soil tests and land surveys would fall in this class. The limitation on this damage measure is that, like all claims for special damages, the property owners must prove these damages by a preponderance of the evidence and with reasonable certainty. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).

Construction of holding in Stewart & Grindle, Inc. v. State. —

The holding in Stewart & Grindle, Inc. v. State , 524 P.2d 1242 (Alaska 1974), that Civil R. 72(k)(4) when construed in the framework of the “just compensation” clauses of the United States and Alaska constitutions entitles the property owner to be made whole for expenses necessarily incurred in connection with the condemnation of his property, does not mean that the state must become the guarantor of costs incurred in advancing every possible legal theory an owner may have in an eminent domain proceeding. Department of Highways v. Salzwedel, 596 P.2d 17 (Alaska 1979).

Any rule which purports to shift the costs of the initial determination of the compensation award upon the owner would be unconstitutional. City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975).

Appraisers’ and attorney’s fees held “necessarily” incurred. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Where the property to be taken has a readily ascertainable market value, or is worth too little to warrant a professional appraisal, an appraiser’s fee could not be said to be “necessary,” and the property owner would not be entitled to compensation for such an expense. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

Where the property has a readily ascertainable market value and the state has offered at least that amount, any attorney’s fees subsequently incurred would not be necessary in order to obtain just compensation, and would accordingly be disallowed. Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974).

No award of expenses in situations not specified in Civ. R. 72(k). —

In the absence of an amendment, the supreme court is not justified in awarding costs and attorney’s fees in situations not specified in Civ. R. 72(k), which specifies when costs and attorney’s fees incurred by the property owner are to be assessed against the condemnor. City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975).

Only expenses necessarily incurred in defending an eminent domain action should be awarded under subsection (2) of Civ. R. 72(k), despite the fact that only subsection (4) requires that the award appear necessary to achieve just compensation. Automatically awarding all costs claimed by a party under subsection (2) of the rule is not mandated by the constitutional requirement of just compensation, any more than it is constitutionally required under subsection (4). State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980).

Award of costs and attorney’s fees in eminent domain proceedings. —

See Martens v. State, Dep’t of Hwys., 623 P.2d 331 (Alaska 1981), construing Civ. R. 72(k).

Award of fees error. —

Award of fees incurred in unsuccessfully seeking compensation for the expectancy of renewal of a lease was error since the expenses in developing this claim were not “necessarily incurred” within the meaning of Civ. R. 72(k)(4). Department of Highways v. Salzwedel, 596 P.2d 17 (Alaska 1979).

Unsuccessful appeal of master’s award. —

A condemnor is not entitled to an award of costs and attorney’s fees when the property owner has unsuccessfully appealed a master’s award. City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975).

Denial of new trial. —

The trial court did not commit an abuse of discretion in denying the state’s motion for new trial, where the jury’s determination of just compensation was within the range of the testimony. State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970).

Jury’s award of $0.00 as just compensation to a property owner for the taking of an easement was not patently inadequate or violative of constitutional provisions pertaining to eminent domain. Scavenius v. City of Anchorage, 539 P.2d 1161 (Alaska 1975).

The taking of an easement does constitute an appropriation of the owner’s property regardless of its minuscule effect. But where the property owner failed to object to instructions expressly permitting the entry of an award of no compensation and the difference between an award of $0.00 compensation and a nominal sum to which the property owner would have been entitled is de minimus, the failure to award compensation per se did not require reversal. Scavenius v. City of Anchorage, 539 P.2d 1161 (Alaska 1975).

Inconsistent verdict. —

State was entitled to a new trial on the amount of just compensation required for the taking of an abutting landowner’s right of access to a controlled access highway, where the jury’s answers to special interrogatories were internally inconsistent and inconsistent with the general verdict and the jury’s conclusion that the remaining property was worth more after the taking than the entire parcel was worth before the taking was irreconcilable with its conclusion that the remainder received no special benefit from the highway project. State v. Lewis, 785 P.2d 24 (Alaska 1990).

Collateral references. —

26 Am.Jur.2d, Eminent Domain, §§ 1-16, 21, 22.

29A C.J.S., Eminent Domain, §§ 2 to 8, 22 to 26.

Use or improvement of highway as establishing grade necessary to entitle abutting owner to compensation on subsequent change. 2 ALR3d 985.

Restrictive covenant or right to enforcement thereof as compensable property right. 4 ALR3d 1137.

Zoning as a factor in determination of damages in eminent domain. 9 ALR3d 291.

Deduction of benefits in determining compensation or damages in proceedings involving opening, widening or otherwise altering highway. 13 ALR3d 1149.

Existence of restrictive covenant as element in fixing value of property condemned. 22 ALR3d 961.

Eminent domain: right to enter land for preliminary survey or examination. 29 ALR3d 1104.

Platting or planning in anticipation of improvement as taking or damaging of property affected. 37 ALR3d 127.

Cost of substitute facilities as measure of compensation paid to state or municipality for condemnations of public property. 40 ALR3d 143.

Measure of damages for condemnation of cemetery lands. 42 ALR3d 1314.

Traffic noise and vibration from highway as element of damages in eminent domain. 51 ALR3d 860.

Condemned property’s location in relation to proposed site of building complex or similar improvement as factor fixing compensation. 51 ALR3d 1050.

Goodwill or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain. 58 ALR3d 566.

Loss of liquor license as compensable in condemnation proceeding. 58 ALR3d 581.

Compensation for diminution in value of remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 ALR3d 488.

Consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages. 59 ALR3d 534.

Determination of just compensation for condemnation of billboards or other advertising signs. 73 ALR3d 1122.

Right to condemn property owned or used by private educational, charitable or religious organization. 80 ALR3d 833.

Good will as element of damages for condemnation of property on which private business is conducted. 81 ALR3d 198.

Recovery of value of improvements made with knowledge of impending condemnation. 98 ALR3d 504.

Zoning regulations limiting use of property near airport as taking of property. 18 ALR4th 542.

Local use zoning of wetlands or flood plain as taking without compensation. 19 ALR4th 756.

Airport operations or flight of aircraft as constituting taking or damaging of property. 22 ALR4th 863.

Eminent domain: compensability of loss of view from owner’s property — state cases. 25 ALR4th 671.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 ALR4th 366.

Validity, construction, and application of state relocation assistance laws. 49 ALR4th 491.

Inverse condemnation state court class actions. 49 ALR4th 618.

Court appointment of attorney to represent, without compensation, indigent in civil action. 52 ALR4th 1063.

Eminent domain: industrial park or similar development as public use justifying condemnation of private property. 62 ALR4th 1183.

Section 19. Right to Keep and Bear Arms.

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.

Effect of amendments. —

The amendment, effective December 30, 1994 (18th Legislature’s Legislative Resolve No. 45), added the second sentence.

Notes to Decisions

Statute prohibiting possession of firearm by felon. —

AS 11.61.200(a) , prohibiting a felon from possessing a concealable firearm, does not violate this provision of the constitution by failing to differentiate between violent and non-violent felons. The legislature has the authority to regulate the possession of guns by felons, and that authority is not limited by art. I, § 19. Wilson v. State, 207 P.3d 565 (Alaska Ct. App. 2009).

The individual right to bear arms set out in Alaska Const. art. I, § 19 is limited and does not invalidate laws that restrict convicted felons’ access to firearms; the adverse consequences of conviction that defendant argued violated his constitutional rights were, in fact, the natural and intended collateral consequences of having been convicted, and they did not justify judicial expungement of his criminal record. Farmer v. State, Dep't of Law, 235 P.3d 1012 (Alaska 2010), cert. denied, 563 U.S. 919, 131 S. Ct. 1816, 179 L. Ed. 2d 776 (U.S. 2011).

Limitation of right to use firearms in self-defense. —

Defendant’s attack on AS 11.81.330(a)(4)(A) , (B), and (C) as violating the right to keep and bear arms under Alaska Const. art. I, § 19 was rejected. Governmental restrictions on the right to bear arms must only be substantially related to a legitimate government interest, rather than supported by a compelling state interest. Stefano v. State, — P.3d — (Alaska Ct. App. Feb. 29, 2012) (memorandum decision).

Statute on misconduct involving weapons constitutional. —

Application of AS 11.61.210 to persons who possess firearms while intoxicated in their homes or on their residential property is not violative of the constitutional right to privacy and to bear arms. Gibson v. State, 930 P.2d 1300 (Alaska Ct. App. 1997).

Statute prohibiting felon from residing in dwelling containing firearm. —

Application of AS 11.61.200(a)(10) , prohibiting a felon from residing in a dwelling knowing there is a firearm in the dwelling, does not infringe on the constitutional right to keep and bear arms. Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997).

Collateral references. —

79 Am.Jur.2d, Weapons and Firearms, §§ 4, 5, 8 to 30.

94 C.J.S., Weapons, §§ 3, 5, 8, 10.

Validity of state statutes restricting the right of aliens to bear arms. 28 ALR4th 1096.

Fact that weapon was acquired for self-defense or to prevent its use against defendant as defense in prosecution for violation of state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons. 39 ALR4th 967.

Sufficiency of prior conviction to support prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons. 39 ALR4th 983.

Validity of state statute proscribing possession or carrying of knife. 47 ALR4th 651.

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms. 86 ALR4th 931.

Federal constitutional right to bear arms. 37 ALR Fed. 696.

Construction and application of 18 U.S.C.A. § 922(e), prohibiting delivery of firearms to common carrier. 125 ALR Fed. 613.

Section 20. Quartering Soldiers.

No member of the armed forces shall in time of peace be quartered in any house without the consent of the owner or occupant, or in time of war except as prescribed by law. The military shall be in strict subordination to the civil power.

Collateral references. —

6 C.J.S., Armed Services, §§ 11, 12.

Section 21. Construction.

The enumeration of rights in this constitution shall not impair or deny others retained by the people.

Notes to Decisions

Right of self-representation has been so retained by the people. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

A prisoner has a right to represent himself in post-conviction relief proceedings. McCracken v. State, 518 P.2d 85 (Alaska 1974).

The right to counsel should not be used to bar self-representation. McCracken v. State, 518 P.2d 85 (Alaska 1974).

The right to self-representation is not absolute. McCracken v. State, 518 P.2d 85 (Alaska 1974).

Self-representation denied. —

Judge did not abuse his discretion when he denied defendant's request for self-representation; defendant gave the judge good reason to think he might not be able to understand the legal issues and mount a coherent defense, but the judge was never able to get to the bottom of these concerns because defendant either deflected the judge's inquiries or denied the judge's right to even conduct the inquiry, and thus the judge was unable to complete the thorough inquiry that case law required. Bourdon v. State, — P.3d — (Alaska Ct. App. Aug. 15, 2018).

Right to self-representation in termination of parental rights case denied. —

In a termination of parental rights case, the superior court did not abuse its discretion when it denied the mother's request to represent herself in the middle of the trial as the mother was unable to act with the courtroom decorum necessary for self-representation because the transcript of the termination proceeding showed that the court had concerns about the mother's courtroom demeanor within the first hour of the trial's first day; the superior court suspected that the mother was under the influence of some substance that made it hard for her to stay on track during her testimony; and the mother was unable to refrain from interfering with the testimony of other witnesses by her conduct at counsel table. Jensen D. v. State, 424 P.3d 385 (Alaska 2018) (memorandum decision).

Right to self-representation cannot be denied based on shackling alone. —

Trial judge erred in denying defendant’s request for self-representation based solely on the fact that he was to be shackled during trial because the Sixth Amendment and Alaska Const., art. I, § 21, require that defendants be given the choice to persist in the request despite the problems and potential prejudice that shackling would pose. Oviuk v. State, 180 P.3d 388 (Alaska Ct. App. 2008).

Qualifications on right of self-representation in post-conviction proceedings. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

Criminal R. 39(b) construed in light of this section. —

See McCracken v. State, 518 P.2d 85 (Alaska 1974).

Applied in

James v. State, 739 P.2d 1314 (Alaska Ct. App. 1987); Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

Quoted in

Falke v. Fairbanks N. Star Borough, 648 P.2d 597 (Alaska 1982); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019); DeRemer v. Turnbull, 453 P.3d 193 (Alaska 2019).

Collateral references. —

16 Am.Jur.2d, Constitutional Law, §§ 4, 219.

16 C.J.S., Constitutional Law, § 104; 16A C.J.S., Constitutional Law, § 635.

Section 22. Right of Privacy.

The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.

Cross references. —

For the unprivileged nature of communications to physicians or other licensed practitioners in an effort to unlawfully procure controlled substances, see AS 11.71.360 .

Effective dates. —

This section took effect October 14, 1972 (7th Legislature’s HCS SJR 68 (1972).)

Opinions of attorney general. —

A legislative auditor may not examine confidential records on file for state income tax returns and wage information submitted by employees and employers to the Department of Labor in connection with the administration of the State Employment Security Act to determine if persons receiving assistance from the Department of Health and Social Services under their Adult Public Assistance and Aid to families with dependent children were eligible. Such data is within the ambit of protection intended to be afforded the right of privacy under this section of the state constitution. 1972 Alas. Op. Att'y Gen. No. 8.

For discussion of restrictions on Alaska Public Safety Information Network in view of right to privacy under this section, see December 10, 1986 Op. Att’y Gen.

The right to privacy does not prevent division of family and youth services access to adult criminal arrest records for purposes of conducting background investigations of prospective foster parents, day care operators, or others who work with children. January 1, 1989 Op. Att’y Gen.

Notes to Decisions

Analysis

I.General consideration

History of right to privacy. —

See Gray v. State, 525 P.2d 524 (Alaska 1974).

The effect of this section is to place privacy among the specifically enumerated rights in Alaska’s constitution. Ravin v. State, 537 P.2d 494 (Alaska 1975); Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Scope to be afforded right to privacy. —

The fact that privacy is among the specifically enumerated rights in the Alaska Constitution does not, in and of itself, yield answers concerning what scope should be accorded to this right of privacy. Ravin v. State, 537 P.2d 494 (Alaska 1975).

The contours of Alaska’s right to privacy are not yet firmly established. The meaning of privacy of necessity must vary depending on the factual context and the often competing interests of society and the individual. State v. Glass, 583 P.2d 872 (Alaska 1978).

The test for what interests are protected under Alaska’s constitutional right to privacy are, first, a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Alaska’s constitution, unlike the federal constitution, contains an explicit guarantee of privacy. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

While the federal right of privacy derives from a broad reading of the due process clause of the 14th amendment or from “emanations” from other constitutional provisions, the right to privacy in Alaska is guaranteed by an explicit constitutional provision, i.e., this section. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

Thus, state right is broader than federal right. —

It is clear from both this section and Alaska decisional law that the right of privacy guaranteed to Alaskan citizens is broader in scope than that guaranteed in the federal constitution. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977); State v. Daniel, 589 P.2d 408 (Alaska 1979).

The express right to privacy in the Alaska Constitution is broader than that afforded by the United States Constitution. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Although there is no recorded legislative history of Alaska’s right to privacy provision, it is clear that it affords broader protection than the penumbral right inferred from other constitutional provisions. Were that not the case, there would have been no need to amend the constitution. State v. Glass, 583 P.2d 872 (Alaska 1978).

Federal and state right to privacy compared. —

Under the language of the federal cases on the right to privacy, it must be found that the privacy invasion is necessary to a compelling state interest, that the governmental regulation does not sweep too broadly. Under the Alaska Constitution, the required level of justification turns on the precise nature of the privacy interest involved. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

Federal decisions not determinative. —

Federal decisions dealing with the 4th amendment to the United States Constitution should not be regarded as determinative of the scope of Alaska’s right to privacy amendment, since no such express right is contained in the United States Constitution. State v. Glass, 583 P.2d 872 (Alaska 1978).

Fourth amendment requirements adopted for Alaska. —

The dual requirement for 4th amendment protection set forth by Justice Harlan is his concurrence in Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), first, that a person have exhibited an actual (subjective) expectation of privacy; and, second, that the expectation be one that society is prepared to recognize as reasonable, has been adopted for Alaska. State v. Glass, 583 P.2d 872 (Alaska 1978).

And may be held subordinate to express constitutional powers. —

Where a compelling state interest is shown, the right may be held to be subordinate to express constitutional powers such as the authorization of the legislature to promote and protect public health and provide for the general welfare. Gray v. State, 525 P.2d 524 (Alaska 1974); Ravin v. State, 537 P.2d 494 (Alaska 1975).

When a matter affects the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated. Ravin v. State, 537 P.2d 494 (Alaska 1975).

The right of privacy is not absolute. Gray v. State, 525 P.2d 524 (Alaska 1974); Ravin v. State, 537 P.2d 494 (Alaska 1975); State v. Erickson, 574 P.2d 1 (Alaska 1978).

No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Neither the state nor the federal right to privacy is absolute, but it is part of the judicial function to ensure that governmental infringements of this right are supported by sufficient justification. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

In expressing the rights to free speech and privacy, the framers of the state constitution appear to have recognized a right of universal freedom and a right to be left alone which is rooted in the natural inclination of human beings. But these rights, in a free society such as this, have never been recognized as absolute and without limitations. Messerli v. State, 626 P.2d 81 (Alaska 1980).

Jones v. Jennings, 788 P.2d 732 (Alaska 1990).

The right to privacy does not entitle a person to engage in conduct in his home which affects others adversely. People do not have a right to argue so loudly in their home that they disturb the sleep of their neighbors. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Alaska Const. art. I, §§ 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution and the Alaska Constitution prior to the enactment of § 22. Alaskans’ heightened right to privacy is safeguarded by requiring the State to show (1) the police had reasonable grounds to believe an emergency was at hand and an immediate need for their assistance in the protection of life or property; (2) the search was not primarily motivated by the intent to arrest a person or to seize evidence; and (3) some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Gibson, 267 P.3d 645 (Alaska 2012).

But government must establish legitimate and compelling interest. —

While it is true that the right to privacy, similar to the right to liberty and the right freely to speak, write and publish on all subjects, is not absolute, such rights may not be abridged by governmental action unless the government meets its substantial burden of establishing that an abridgment of any such right is justified by a legitimate and compelling governmental interest. Messerli v. State, 626 P.2d 81 (Alaska 1980).

When statute impinging on right may be upheld. —

Where a law impinges upon the constitutionally guaranteed right of privacy, the statute may be upheld only if it is necessary to further a compelling state interest. Gray v. State, 525 P.2d 524 (Alaska 1974).

Where defendant, who was convicted of first-degree assault, refused to provide a sample of his DNA for inclusion in Alaska’s DNA database, he was properly convicted of violating AS 11.56.760(a) . Nason v. State, 102 P.3d 962 (Alaska Ct. App. 2004).

The authority of the state to exert control over the individual extends only to activities of the individual which affect others or the public at large as it relates to matters of public health or safety, or to provide for the general welfare. Ravin v. State, 537 P.2d 494 (Alaska 1975).

The authority of the state to control the activities of its citizens is not limited to activities which have a present and immediate impact on the public health or welfare. Ravin v. State, 537 P.2d 494 (Alaska 1975).

There is a presumption in favor of public health measures; when there is substantial doubt as to the safety of a given substance or situation for the public health, controls intended to obviate the danger will usually be upheld. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Tests applied when claim is made that state action encroaches upon individual’s constitutional rights. —

See Ravin v. State, 537 P.2d 494 (Alaska 1975).

Findings required for involuntary administration of psychotrophic drugs. —

Trial court’s order approving administration of psychotropic drugs to the patient pursuant to AS 47.30.839 was vacated because the patient’s right to choose or reject medication was a fundamental right, and thus the liberty and privacy guarantees in this section and Alaska Const. art. I, § 7 required the courts, not physicians, to protect and enforce those guarantees. In future non-emergency cases, a court may not permit a treatment facility to administer psychotropic drugs unless the court makes findings that comply with all applicable statutory requirements and, in addition, expressly finds by clear and convincing evidence that the proposed treatment is in the patient’s best interests and that no less intrusive alternative is available. Myers v. Alaska Psychiatric Inst., 138 P.3d 238 (Alaska 2006).

Abortion rights. —

This section protects reproductive autonomy, including the right to abortion, more broadly than does the United States Constitution. Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997).

The abortion policy of a hospital found to be a quasi-public institution must comply with the Alaska Constitution. Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997).

Former AS 18.16.010(b) , providing that a “hospital may decline to offer abortions for reasons of moral conscience,” is unconstitutional to the extent it applies to quasi-public institutions. Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997).

Alaska Parental Consent Act violates minors’ rights to privacy under Alaska Const. art. I, § 22; the state failed to establish that the greater intrusiveness of a statutory scheme that required parental consent, rather than parental notification, was necessary to achieve its compelling interests; by prohibiting minors from terminating a pregnancy without the consent of their parents, the Act bestowed upon parents a “veto power” over their minor children’s abortion decisions. State v. Planned Parenthood, 171 P.3d 577 (Alaska 2007).

Right to privacy in the home. —

The privacy amendment to the Alaska Constitution was intended to give recognition and protection to the home. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Citizens of the State of Alaska have a basic right to privacy in their homes under Alaska’s constitution. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Former AS 11.61.200(e)(1)(D) [see now AS 11.61.220(a)(5) ], which makes the possession of a gravity knife in one’s home a crime, does not violate the right to privacy under the Alaska Constitution. State v. Weaver, 736 P.2d 781 (Alaska Ct. App. 1987).

Publication of criminal record. —

Plaintiff’s tort claim against the governor based on the right to privacy under the Alaska Constitution failed because he did not establish that publication of his criminal record contained in the Alaska Public Safety Information Network would violate this section. Thoma v. Hickel, 947 P.2d 816 (Alaska 1997).

Municipal employees’ names and salaries. —

Municipal employees do not have a reasonable expectation of privacy in their names and salaries; disclosure of municipal employees’ names in conjunction with their salaries to newspaper did not violate the employees’ constitutional or statutory rights to privacy. International Ass'n of Fire Fighters, Local 1264 v. Municipality of Anchorage, 973 P.2d 1132 (Alaska 1999), overruled in part, Basey v. Dep't of Pub. Safety, Div. of Alaska State Troopers, Bureau of Investigations, 462 P.3d 529 (Alaska 2020).

Physician assisted suicide. —

Physician assisted suicide is not a fundamental right within the core meaning of the Alaska Constitution’s privacy clause. Sampson v. State, 31 P.3d 88 (Alaska 2001).

Qualifying relationship for death benefits. —

Denial of death benefits to an unmarried cohabitant after the work-related death of her long-term partner did not deprive her of her constitutional rights, since the denial did not substantially burden her freedom to have an unmarried intimate relationship with her partner and was fairly and substantially related to the act’s goal of providing quick, efficient, fair, and predictable benefits to families of deceased workers at a reasonable cost to employers. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

Legislature’s reliance on marriage as the determining factor for spousal death benefits under the Workers’ Compensation Act, AS 23.30.005 et seq., bears a fair and substantial relationship to the goal of ensuring the quick, efficient, fair and predictable delivery of benefits at a reasonable cost; the act’s balance between perfect fairness on the one hand, and cost, efficiency, speed, and predictability on the other, does not violate the equal protection clause. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

Applied in

Reeves v. State, 599 P.2d 727 (Alaska 1979); Nevers v. State, 123 P.3d 958 (Alaska 2005); McKelvey v. State, 474 P.3d 16 (Alaska Ct. App. 2020).

Quoted in

Mohn v. State, 584 P.2d 40 (Alaska 1978); State v. Malkin, 678 P.2d 1356 (Alaska Ct. App. 1984); Rollins v. Ulmer, 13 P.3d 715 (Alaska 2000); State v. ACLU of Alaska, 204 P.3d 364 (Alaska 2009); Lum v. Koles, 426 P.3d 1103 (Alaska 2018); Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Stated in

Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316 (Alaska 1982); Brown v. Ely, 14 P.3d 257 (Alaska 2000).

Cited in

II.Application
A.Illegal Substances

Ban on tobacco usage which includes private clubs. —

Under the Alaska Constitution there is no fundamental right of personal autonomy to smoke tobacco. Fraternal Order of Eagles v. City & Juneau-Douglas Aerie 4200, 254 P.3d 348 (Alaska 2011).

Section shields ingestion of substances. —

There is no available recorded history of this section, but clearly it shields the ingestion of food, beverages or other substances. Gray v. State, 525 P.2d 524 (Alaska 1974).

Possession of marijuana by adults at home for personal use is constitutionally protected. Ravin v. State, 537 P.2d 494 (Alaska 1975).

No adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Citizens of the State of Alaska have a basic right to privacy in their homes under Alaska’s constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, noncommercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Initiative legislation that reinstated certain penalties for possession of marijuana in any place and in any amount was unconstitutional to the extent that it violated the constitutional right to privacy as articulated in the Ravin v. State , 537 P.2d 494 (Alaska 1975) decision; the appellate court upheld the statute to the extent possible by reinstating a dividing line between private personal possession and illegal possession of four ounces, and ordered a new trial to determine which category of possession defendant fell into. Noy v. State, 83 P.3d 538 (Alaska Ct. App. 2003).

Evidence that a person possesses an unspecified quantity of marijuana in his home does not, standing alone, establish probable cause to believe that the person is breaking the law. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Privacy provision of Alaska Const. art. I, § 22 protects an adult’s right to possess a limited amount of marijuana at home for personal use. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Defendant was entitled to suppress evidence of marijuana plants seized from his home pursuant to a search warrant, because the state’s warrant application failed to establish probable cause to believe that defendant’s possession of marijuana was illegal. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

But possession or ingestion of marijuana is not fundamental right. —

The right to privacy amendment to the Alaska Constitution cannot be read so as to make the possession or ingestion of marijuana itself a fundamental right. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Assuming the supreme court were to continue to utilize the fundamental right-compelling state interest test in resolving privacy issues under this section, it would conclude that there is not a fundamental constitutional right to possess or ingest marijuana in Alaska. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Neither the federal nor Alaska Constitution affords protection for the buying or selling of marijuana, nor absolute protection for its use or possession in public. Ravin v. State, 537 P.2d 494 (Alaska 1975); Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Possession at home of amounts of marijuana indicative of intent to sell rather than possession for personal use is unprotected. Ravin v. State, 537 P.2d 494 (Alaska 1975); Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Medical marijuana law constitutional. —

Alaska’s medical marijuana law does not require medical marijuana users to divulge any details about the debilitating conditions they suffer, and although it does require them to register and to identify their approving physicians, the law explicitly requires the department to keep the registry confidential; therefore, the law’s confidential registration process does not violate the constitutional right to privacy. Rollins v. Ulmer, 15 P.3d 749 (Alaska 2001).

Quantity of marijuana possessed for personal use. —

Since eight ounces or more of marijuana is an amount large enough to justify legislative regulation even when it is possessed in a residence for purely personal use, AS 11.71.050(a)(3)(E) does not offend the right of privacy guaranteed by the state Constitution. Walker v. State, 991 P.2d 799 (Alaska Ct. App. 1999).

Privacy provision of Alaska Const. art. I, § 22 protected the right of an adult to possess a small amount of marijuana in his home for personal use; the legislature had the power to set reasonable limits on the amount of marijuana that people could possess for personal use in their homes. Thus, the criminalization of the possession of 25 or more marijuana plants, regardless of the weight of the marijuana in its processed form, did not conflict with the state case law; because defendant had 43 live marijuana plants in his home, his misconduct involving a controlled substance in the fourth degree, a class C felony, conviction under AS 11.71.040(a)(3)(G) was affirmed. Hotrum v. State, 130 P.3d 965 (Alaska Ct. App. 2006).

Where possession of marijuana occurred in a public place and was in connection with the sale of a substantial amount of that drug, even though his conviction was for possessing the drug rather than for being an accomplice to its sale, the state could constitutionally prohibit defendant’s possession. Belgarde v. State, 543 P.2d 206 (Alaska 1975).

Possessing or ingesting marijuana while driving. —

Given the evidence of the effect of marijuana on driving, an individual’s right to possess or ingest marijuana while driving would be subject to the prohibition provided for in former AS 17.12.010. Ravin v. State, 537 P.2d 494 (Alaska 1975).

The need for control of drivers under the influence of marijuana and the existing doubts as to the safety of marijuana demonstrate a sufficient justification for the prohibition found in AS 17.12.010 as an exercise of the state’s police power for the public welfare. Ravin v. State, 537 P.2d 494 (Alaska 1975).

Personal use of cocaine. —

Criminalization of the personal use and possession of cocaine in the home does not constitute an invalid infringement on the right of privacy. State v. Erickson, 574 P.2d 1 (Alaska 1978).

There is a sufficiently close and substantial relationship between the means chosen to regulate cocaine and the legislative purpose of preventing harm to health and welfare so as to justify the prohibition of use of cocaine, even in the home. State v. Erickson, 574 P.2d 1 (Alaska 1978).

The right of privacy does not permit reasonable access to cocaine for personal and social use. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Cocaine is substantially more of a threat to health and welfare than marijuana. State v. Erickson, 574 P.2d 1 (Alaska 1978).

Use of drug detection dogs proper. —

Defendant’s conviction for possessing cocaine with the intent to deliver was affirmed because the trial court properly denied defendant’s motion to suppress evidence obtained when narcotics enforcement officers subjected a package that he shipped through a private delivery service to inspection by a drug detection dog. The officers had received extensive specialized training in drug interdiction and in recognizing drug packages, and applied that training when they decided to have the package checked by the dog. Cooley v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2009) (memorandum decision).

Private drug testing of employees. —

This section does not proscribe the private action of a private employer’s drug testing program for its employees. Luedtke v. Nabors Alaska Drilling, 768 P.2d 1123 (Alaska 1989).

Municipality’s policy subjecting police employees and firefighters to suspicionless substance abuse testing was, for the most part, constitutional, but random testing provision was unreasonable and thus unconstitutional. Anchorage Police Dep't Emples. Ass'n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001).

Blood alcohol testing permitted. —

The right to privacy granted by this section does not create a separate, independent right to seek exclusion of evidence. AS 28.35.035(a) does not violate a right to privacy under this section. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

B.Children

“Parental rights” protected by constitution. —

See L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

State may interfere with conduct of children in need of aid. —

Conduct of children alleged to be in need of supervision [see now children in need of aid], such as running away from home and foster home placement, may constitutionally be interfered with by the state. L. A. M. v. State, 547 P.2d 827 (Alaska 1976).

And may control sexual conduct of children. —

Although juveniles may have certain rights to sexual privacy, the state may nevertheless exercise control over the sexual conduct of children beyond the scope of its authority to control adults. Anderson v. State, 562 P.2d 351 (Alaska 1977).

While juveniles have certain rights to privacy and to express their own autonomy, the state’s interest in the well-being of its children may justify legislation that could not properly be applied to adults. Anderson v. State, 562 P.2d 351 (Alaska 1977).

The state may forbid an adult to have fellatio with a child under 16 regardless of whether the child consents to the act. Anderson v. State, 562 P.2d 351 (Alaska 1977).

Former AS 11.15.134(a) did not implicate constitutional rights of adults. —

Since former AS 11.15.134(a), which made it a crime to commit a lewd or lascivious act upon or with the body of a child under 16 years of age, intending to arouse the sexual desires of either the actor or the child, prohibited only lewd and lascivious physical contact with children, that section did not implicate the 1st amendment right of adults to possess and exhibit literature or the right of adults to privacy in their homes at least insofar as that right protects parents dressing in front of children, those who tell dirty jokes and adults who are passionately affectionate with other adults in the presence of children. Anderson v. State, 562 P.2d 351 (Alaska 1977).

School officials not subject to search and seizure limitations. —

School officials, while they are public employees subject to constitutional constraints, are not “law enforcement officers” whose conduct is governed by state and federal constitutional limitations on searches and seizures. D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982).

Submission of child support financial affidavits and income disclosure does not violate privacy rights because the state has a compelling interest in supporting children; non-custodial parents are required to supply financial information necessary for the courts to calculate adequate child support. Lawson v. Lawson, 108 P.3d 883 (Alaska 2005).

School requirement of tuberculosis testing. —

Parents had a privacy and liberty interest in their children’s health care under Alaska Const. art. I, §§ 1 and 22. The state had a compelling interest in preventing school children from spreading tuberculosis; but there was evidence that the state’s interest could be met with the use of less intrusive testing. Huffman v. State, 204 P.3d 339 (Alaska 2009).

C.Sexual Conduct

Commercial sex in public establishment. —

Defendants’ rights of privacy under the Constitution of the United States and the Alaska Constitution do not encompass commercial sex in a public establishment. Summers v. Anchorage, 589 P.2d 863 (Alaska 1979).

Massage parlors. —

Provisions of an ordinance regulating physical culture studios and massage parlors which prohibited the locking inside of patrons and intentional exposure of a masseur/masseuse’s genitals to a patron, and touching of a patron’s genitals, was not in violation of their right to privacy guaranteed by this section, since the “commercial and public” aspects of massage parlor activities removed the shield of privacy from these activities. Hilbers v. Municipality of Anchorage, 611 P.2d 31 (Alaska 1980).

Registration of sex offenders. —

Sex offenders required to register with police authorities do not appear to be able to establish a reasonable expectation of privacy in the information required to be disclosed by the Registration Act, ch. 41, SLA 1994. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), rev'd, 248 F.3d 832 (9th Cir. Alaska 2001), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Where a defendant offered no authority that society would recognize as reasonable his subjective expectation of privacy in his physical appearance, as represented by his photograph, or that he had a reasonable expectation of privacy in his employer’s address, and where the individuals whose privacy interests were being affected by the sex offender registration statute were members of an identifiable group that the legislature considered a sufficient public safety risk to justify the creation of the registry and the release of certain biographical data, the defendant’s expectation of privacy was not an expectation that society would recognize as reasonable. Patterson v. State, 985 P.2d 1007 (Alaska Ct. App. 1999), overruled in part, Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

While the Alaska Sexual Offender Registration Act, AS 12.63.010 —- 12.63.100 , violated the Due Process Clause, its defect could be cured by creation of a procedure for offenders to establish their non-dangerousness by filing a civil action in a superior court. Doe v. Dep't of Pub. Safety, 444 P.3d 116 (Alaska 2019).

D.Professional — Client Privileges

The federal and Alaska constitutions do not require an evidentiary psychotherapist privilege resulting from the right to privacy. Allred v. State, 554 P.2d 411 (Alaska 1976).

But supreme court recognizes common-law privilege. —

The supreme court recognizes a common-law privilege, belonging to the patient, which protects communications made to psychotherapists in the course of treatment. Allred v. State, 554 P.2d 411 (Alaska 1976).

As to the scope of the common-law privilege, see Allred v. State, 554 P.2d 411 (Alaska 1976).

Real estate broker not entitled to a candidate reporting exemption. —

Self-employed real estate broker who ran as a candidate for local elective office was not entitled to a blanket exemption from Alaska's financial disclosure requirements because the broker did not demonstrate that the required information regarding the identity of the broker's clients and the income earned from them was uniformly confidential, that the disclosure was uniformly prohibited by law, or that the disclosures would have violated the clients' constitutional privacy rights. Studley v. Alaska Pub. Offices Comm'n, 389 P.3d 18 (Alaska 2017).

Psychotherapist-patient privilege in child protection cases. —

See State v. R.H., 683 P.2d 269 (Alaska Ct. App. 1984).

Waiver of psychotherapist-patient privilege. —

The psychotherapist-patient privilege is waived by the assertion of a defense of insanity as to communications which are relevant to that defense. Post v. State, 580 P.2d 304 (Alaska 1978).

The psychotherapist-patient privilege is waived when the defendant raises diminished capacity defense at trial. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Interference with doctor-patient relationship. —

Like interference with rights of privacy within the home, interference with certain relationships such as the doctor-patient relationship ordinarily mandates a very high level of justification. There must be a “fair and substantial relation” between the statutory means and a legitimate governmental purpose. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

The decisions of both the supreme court of this state and the United States supreme court clearly establish that certain types of information communicated in the context of the physician-patient relationship fall within a constitutionally-protected zone of privacy. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

Disclosure provisions of conflict of interest law. —

Until appropriate regulations are promulgated to protect certain classes of patients, the conflict of interest law may not be applied so as to require reporting the names of individual patients of a physician. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

The extent to which the governmental interest in promoting fair and honest government would be impeded by not strictly complying with the conflict of interest law, does not outweigh the individual’s privacy interest in protecting sensitive personal information from public disclosure. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

In particular situations disclosure under the mandates of the conflict of interest law of the mere fact that an individual has visited a certain physician may have the effect of making public certain confidential or sensitive information, i.e., a specialized practice might reveal a certain type of treatment a patient has received. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

To determine the validity of the disclosure provisions of the conflict of interest law, both the nature and the extent of the privacy invasion and the strength of the state interest requiring disclosure must be considered. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469 (Alaska 1977).

E.State Authority

Campaign disclosure provisions constitutional. —

When there is no showing that an individual must remain anonymous with respect to advertising as to ballot propositions because of the possibility of being subject to reprisals, economic or otherwise, the state campaign disclosure laws, AS 15.13.010 15.13.130 , are not unconstitutional as applied to a contributor hoping to influence the outcome of a ballot issue because the objective of an informed electorate is sufficiently compelling to overcome an interest in anonymous political expression. Messerli v. State, 626 P.2d 81 (Alaska 1980).

The Alaska Campaign Disclosure Act (AS 15.13.010 et seq.) is not unconstitutionally vague or overbroad, nor does it violate the constitutional right of the people to privacy. VECO Int'l v. Alaska Pub. Offices Comm'n, 753 P.2d 703 (Alaska 1988).

Local option laws. —

Enactment of a local option law, Title 4, Chapter 11, Article 6, bears a close and substantial relationship to the legitimate legislative goal of protecting the public health and welfare by curbing the level of alcohol abuse in the state and does not violate this section. Harrison v. State, 687 P.2d 332 (Alaska Ct. App. 1984).

Statute on misconduct involving weapons constitutional. —

Application of AS 11.61.210 to persons who possess firearms while intoxicated in their homes or on their residential property is not violative of the constitutional right to privacy and to bear arms. Gibson v. State, 930 P.2d 1300 (Alaska Ct. App. 1997).

Income tax returns. —

State’s interest in the information sought on income tax returns outweighs any privacy rights violated by compulsion to fill out the form or testify before a revenue agent. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Given the lack of connection between most information sought on a tax return and a person’s more intimate concerns and the confidentiality protections afforded by AS 43.05.230 , the state’s interest in the implementation of its tax system justifies and outweighs any privacy rights violated by compulsion to fill out tax forms or testify before a revenue agent. Department of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981).

Fire officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. Schultz v. State, 593 P.2d 640 (Alaska 1979). See note to Alaska Const., art. I, § 14.

Where a fire inspector’s entry into a house took place within 25 to 40 minutes after the firefighters had arrived at the scene, when the fire was under control but not entirely extinguished, and it was the inspector’s specific duty to attempt to discover the cause of the fire, her entry into the building at that time, and her remaining in the building for one to one and one-half hours, were well within a “reasonable time” to investigate the cause of the fire without the necessity of first securing a warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

A person’s privacy and security must be safeguarded against arbitrary invasions by governmental officials, such as fire inspectors. The rule is the same here as in the case of invasions by police officers and building and health inspectors, i.e., that, except in narrowly-defined classes of cases, the provisions of Alaska Const., art. I, § 14 stand for the proposition that a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Schultz v. State, 593 P.2d 640 (Alaska 1979).

Police observations during entry of house at owner’s behest. —

Where, after entering a house at the owner’s behest, a police officer merely observes items in plain view and later repeats his observations to support the acquisition of a search warrant, he has not impermissibly invaded the owner’s expectation of privacy. Guidry v. State, 671 P.2d 1277 (Alaska 1983).

Valid motor vehicle stop disposed of related privacy claim. —

Where defendant, who was stopped and charged with a felony DUI after he was seen trying to start his snowmachine on a sidewalk, argued that a reasonable person would not expect that the traffic code applied to a sidewalk covered by a snow berm, and therefore, he had a reasonable expectation of privacy not to be contacted by the police, the right to privacy guaranteed by this section did not create a right to seek the exclusion of evidence that was separate and independent from the right to be free from unreasonable searches and seizures under Alaska Const. art. I, § 14; consequently, the ruling that defendant’s stop was valid under Alaska Const. art. I, § 14 disposed of his privacy claim as well. Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

Trooper’s entry into defendant’s vehicle was proper, where defendant was found slumped over the wheel of his car, the engine was running, and the headlights were on. Sather v. State Div. of Motor Vehicles, Dep't of Pub. Safety, 776 P.2d 1055 (Alaska 1989).

Canine searches. —

Alaska’s stringent protection of its citizens’ privacy interests can be assured if the reasonable suspicion standard is applied to canine searches of areas of public access exterior to commercial buildings. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Police officers had reasonable suspicion to conduct a canine sniff of defendant’s warehouse, where the officers received a tip from a citizen informant that the warehouse owners did not behave as legitimate business people and renovations to the building were consistent with ones which would be needed to grow marijuana in the warehouse. McGahan v. State, 807 P.2d 506 (Alaska Ct. App. 1991).

Warrantless intrusions into double-booked hotel room by security officer and police. —

See note to Ak. Const. art. I, § 14, Staats v. State, 717 P.2d 413 (Alaska Ct. App. 1986).

Search of arrested person for identification. —

See note to § 14 of this article, analysis line I., “General Consideration,” Stephens v. State, 698 P.2d 664 (Alaska Ct. App. 1985).

Generally, search warrant should be required before permitting electronic monitoring of conversations. —

See State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

One communicating private matters to another exhibits an actual (subjective) expectation of privacy whether or not the listener is equipped with electronic devices. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

The expectation that one’s conversations will not be secretly recorded or broadcast should be recognized as reasonable. State v. Glass, 583 P.2d 872 (Alaska 1978). See also State v. Thornton, 583 P.2d 886 (Alaska 1978).

This section prohibits the secret electronic monitoring of conversations upon the mere consent of a participant. State v. Glass, 583 P.2d 872 (Alaska 1978).

Warrantless monitoring of private conversations on the mere consent of a participant violates the right of privacy and constitutes an unreasonable search and seizure under Alaska Const., art. I, § 14 and this section. Aldridge v. State, 584 P.2d 1105 (Alaska 1978).

Warrantless monitoring of a private conversation by a participant to that conversation violates Alaska Const., art. I, § 14 and this section. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Warrantless nonconsensual recordings are violative of the constitutional rights of the person being recorded. Gonzales v. State, 608 P.2d 23 (Alaska 1980).

Holding in Glass applies prospectively. —

The holding in State v. Glass , 583 P.2d 872 (1978), requiring a search warrant before electronic monitoring of conversations be allowed, applies only prospectively to police activity occurring on or after September 15, 1978, with the exception of Glass and three other cases considered at the same time. State v. Thornton, 583 P.2d 886 (Alaska 1978); Aldridge v. State, 584 P.2d 1105 (Alaska 1978); Coffey v. State, 585 P.2d 514 (Alaska 1978); Robinson v. State, 593 P.2d 621 (Alaska 1979).

See also Mossberg v. State, 624 P.2d 796 (Alaska 1981), in which the supreme court refused to adopt an exception to the retroactivity ruling made in State v. Glass, 583 P.2d 872 (Alaska 1978).

Warrantless videotaping of private conversations. —

If a person engages in a conversation that is protected from electronic monitoring under State v. Glass , 583 P.2d 872 (Alaska 1979), and if the conversation occurs in a place where the person has a reasonable expectation of visual privacy, such as a private apartment, then the police must secure a warrant before surreptitiously videotaping the conversation, even if they turn the sound off. State v. Page, 911 P.2d 513 (Alaska Ct. App. 1996).

Videotape recording of defendant while a breathalyzer examination was being administered to him and while he performed other sobriety tests, made at state trooper headquarters following defendant’s arrest for operating a motor vehicle while under the influence of intoxicating liquor, did not violate defendant’s right to privacy under this section. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983), and Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

Warrant for participant monitoring need not describe location. —

There is no requirement that warrants issued for participant monitoring of conversations contain particularized descriptions of the location in which the monitoring will occur. Jones v. State, 646 P.2d 243 (Alaska Ct. App. 1982).

Admissibility of tape recording of suspect’s conversation with police. —

A tape recording of a suspect’s conversation with a police officer is properly admitted into evidence at a suspect’s trial, when the suspect knew, or reasonably should have known, that he was speaking to a police officer, but was not aware that the officer was recording their conversation. City & Borough of Juneau v. Quinto, 684 P.2d 127 (Alaska 1984).

Slides stored on shelf in home. —

Defendant’s expectation of privacy retained in photographic slides stored on a shelf in his home was reasonable, and his rights and expectations of privacy were limited only to the extent necessary to properly execute the search warrant, which authorized a search for marijuana and related paraphernalia. Anderson v. State, 555 P.2d 251 (Alaska 1976).

Knock and announce requirement. —

The supreme court found it unnecessary to squarely decide whether the Alaska Constitution contains its own requirement that a police officer announce his authority and purpose prior to entering premises to execute a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Even if the Alaska Constitution does contain its own knock and announce requirement before a police officer can enter premises to execute search warrant, the substantial compliance doctrine should apply, as it does under AS 12.25.100 and 12.35.040 , which operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Mandatory seatbelt use. —

Alaska’s seatbelt law, AS 28.05.095(a) , does not infringe the rights of personal liberty, autonomy, and privacy guaranteed by this provision and Alaska Const. art. I, §§ 1, and 14, as the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

Roadblocks can properly be established when a serious crime has been committed for purposes of investigation or apprehension of a suspect where exigent circumstances exist and where the roadblock is reasonable in light of the particular circumstances of the case. Lacy v. State, 608 P.2d 19 (Alaska 1980).

State action required. —

Constitutional right to privacy does not extend to the actions of private actors. Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004).

F.Documents

Electric utility customer records. —

Electric utility customer had no reasonable expectation of privacy in his name and address and the locations where he received utility services, and the superior court therefore erred in suppressing evidence which police obtained as the result of obtaining his address from a utility employee. State v. Chryst, 793 P.2d 538 (Alaska Ct. App. 1990).

Disclosure of personnel records. —

Trial court order, in civil action alleging use of excessive force by police officers, requiring disclosure of police personnel records and prior citizen complaints was proper, and did not contravene the officers’ right to privacy, where the documents were subjected to prior in camera inspection for the purpose of screening particularly sensitive files. Jones v. Jennings, 788 P.2d 732 (Alaska 1990).

De-listing of names of threatened state employees. —

Under the right of privacy provision, Alaska Const., art. I, § 22, the Department of Fish & Game was entitled to redact the names of public employees and private contractors from time sheets requested under the Public Records Act, where those individuals had received threats against their lives. Alaska Wildlife Alliance v. Rue, 948 P.2d 976 (Alaska 1997).

Submission of security dealer’s documents. —

State’s interest in obtaining an alleged securities dealer’s documents as part of its securities regulatory scheme outweighed any privacy rights violated by their submission where the records sought were all bound to be seen by others in the course of their use and the other documents were bound to be seen by others in their dissemination to prospective investors. Pratt v. Kirkpatrick, 718 P.2d 962 (Alaska 1986).

Superior court’s records release order in a child in need of aid proceeding did not violate state or federal rights of privacy, where the order was intended to facilitate an expeditious and comprehensively monitored reunion of the child and her father, and the order’s scope was limited to agencies directly involved in providing resources to the parties in the case. In re A.B., 791 P.2d 615 (Alaska 1990).

Access to witness’ private medical records. —

It would be an unwarranted infringement of a witness’ privacy, and therefore inconsistent with the protection of persons, to grant access to the witness’ private medical records unless the material was relevant. Gunnerud v. State, 611 P.2d 69 (Alaska 1980).

G.Right of Privacy in Specific Places

Private mail service account. —

Where employees of a private mail service provided information about who opened an account with the service, when the account was opened, and what directions the mail service received for forwarding the mail, this information did not constitute information about which the defendant, who opened the account, could have a reasonable expectation of privacy. D'Antorio v. State, 837 P.2d 727 (Alaska Ct. App. 1992).

Store grooming policy not violation of privacy. —

Where a grocery store clerk was terminated after he refused to cut his hair, the grocery store’s hair grooming policy did not violate the employee’s constitutional right of privacy because there was no state action. Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004).

Private business premises. —

In light of the expansive protections afforded to citizens of Alaska by virtue of this section and Alaska Const., art. I, § 14 against warrantless searches and seizures and invasions of privacy, the Alaska Constitution prohibits warrantless administrative inspections of private business premises. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Owners of business premises exhibited an actual (subjective) expectation of privacy in their business establishment, and their expectation of privacy is one that society is prepared to recognize as reasonable. Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).

Warrantless entry into private residence. —

Exigent circumstances justified the warrantless police entry into a residence where defendant and the victim were present, where police officers were responding to the second report of an assault at the residence that evening, and where they heard a male and female yelling inside. It was reasonable for the police to believe the woman was in danger, and defendant’s right to privacy under this provision was not violated. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

Video surveillance in workplace. —

Based upon the open and public nature of the place where defendant worked, and the fiduciary nature of the work she was doing as manager of a theater box office, she did not have a reasonable expectation of privacy from video surveillance in the box office. Cowles v. State, 961 P.2d 438 (Alaska Ct. App. 1998), aff'd, 23 P.3d 1168 (Alaska 2001).

Where a box office manager was stealing cash from ticket sales and university police, without obtaining a warrant, installed a hidden video camera which recorded her in the act of theft, the videotape was not obtained in violation of the manager’s constitutional rights, because activities that are open to public observation are not generally protected. Cowles v. State, 23 P.3d 1168 (Alaska 2001), cert. denied, 534 U.S. 1131, 122 S. Ct. 1072, 151 L. Ed. 2d 974 (U.S. 2002).

Public restroom. —

When one is in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one’s behavior is subject to the observation of others who are in the public area. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Police officer, who entered a public restroom and noticed that two men were engaging in some sort of transaction in a lavatory stall, was justified in concluding that he was probably observing an illegal drug transaction and in telling the men to come out of the stall. Barron v. State, 823 P.2d 17 (Alaska Ct. App. 1992).

Backpack in public place. —

Because defendant was prosecuted for possessing marijuana in his backpack, and the backpack was located in a vehicle in a public place, defendant's possession of this marijuana was not protected under the right of privacy set forth in Alaska Const. art. I, § 22. Murphy v. State, — P.3d — (Alaska Ct. App. Sept. 14, 2016) (memorandum decision).

Fishing vessel hold. —

The right of privacy does not extend to the hold of a fishing vessel tied to a fish processing vessel and in the process of unloading the catch in the presence of others than the defendants. Dye v. State, 650 P.2d 418 (Alaska Ct. App. 1982), hearing denied, 666 P.2d 48 (Alaska 1983).

Trash placed for collection. —

Based on Alaska Const. art. I, §§ 14, 22, and the highly personal information that can be revealed by a garbage search, the Supreme Court of Alaska holds that a person who sets out garbage for routine collection on or adjacent to a public street or a public area has some objectively reasonable expectation of privacy in that garbage. Beltz v. State, 221 P.3d 328 (Alaska 2009).

H.Application — Abortion

Right to privacy. —

In a challenge to Alaska’s S.B. 24, the superior court correctly decided that the state can constrain a minor’s privacy right only when necessary to further a compelling state interest and only if no less restrictive means exist to advance that interest. State v. Planned Parenthood, 35 P.3d 30 (Alaska 2001).

To justify the parental consent or judicial authorization act’s restriction of a minor’s right to terminate a pregnancy, the state must establish a compelling interest in restricting the minor’s right to privacy under this section; it may not simply assert that Alaska’s constitution extends a diluted form of privacy right, or no right at all, to minors. State v. Planned Parenthood, 35 P.3d 30 (Alaska 2001).

III.Practice and Procedure

Consideration of the juvenile record is proper by the court imposing a sentence upon an adult offender. Penn v. State, 588 P.2d 288 (Alaska 1978).

Warning to potential defendant appearing before grand jury. —

In order to protect the right of privacy and the right of a person to not be compelled to incriminate himself, the prosecution is required to give a target warning to a potential defendant who appears before a grand jury. Pinkerton v. State, 784 P.2d 671 (Alaska Ct. App. 1989).

A court may impose minimum standards of dress for the attorneys who appear before it. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

While a court cannot adopt a dress code for attorneys who appear before it which is unduly rigid or which attempts to dictate matters of taste and esthetic preference, the requirement of merely wearing a coat and tie is a reasonable one. Friedman v. District Court, 611 P.2d 77 (Alaska 1980).

Suppression of illegally obtained evidence. —

The explicit right of privacy protected by this section did not mandate suppression of evidence which defendant alleged was taken from him pursuant to unreasonable search and seizure. Weltin v. State, 574 P.2d 816 (Alaska 1978).

Suppression of evidence illegally seized is always predicated on Alaska Const., art. I, § 14, and this is merely used as a justification for giving that provision a liberal interpretation. Wortham v. State, 641 P.2d 223 (Alaska Ct. App. 1982). See also State v. Jones, 706 P.2d 317 (Alaska 1985).

Waiver of motion to strike telephone record evidence. —

Defendant in bribery prosecution waived his motion to strike telephone record evidence based on his right of privacy under the state constitution by failing to raise the issue at the omnibus hearing. Hohman v. State, 669 P.2d 1316 (Alaska Ct. App. 1983).

Collateral references. —

Validity, construction, and effect of state laws requiring public officials to protect confidentiality of income tax returns or information. 1 ALR4th 959.

Name appropriation by employer or former employer. 52 ALR4th 156.

False light invasion of privacy — cognizability and elements. 57 ALR4th 22.

Invasion of privacy by a clergyman, church, or religious group. 67 ALR4th 1086.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guarantee. 74 ALR4th 1099.

Constitutionality of secret video surveillance. 91 ALR5th 585.

Expectation of privacy in internet communications. 92 ALR5th 15.

Invasion of privacy by using or obtaining e-mail or computer files, 68 ALR6th 331.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 ALR6th 89.

Marriage between persons of the same sex — United States and Canadian cases. 1 ALR Fed. 2d 1.

Section 23. Resident Preference.

This constitution does not prohibit the State from granting preferences, on the basis of Alaska residence, to residents of the State over nonresidents to the extent permitted by the Constitution of the United States.

Effective dates. —

This section took effect January 4, 1989 (15th Legislature’s CSHJR 18 (1988).)

Notes to Decisions

Permanent Fund Dividend. —

The six-month requirement does not prevent a service member’s employment in the military in violation of Alaska Const. art. I, § 23; it simply provides that before military personnel can claim state resources through the Permanent Fund Dividend program, the service member must spend six months in state. Heller v. Dep't of Revenue, 314 P.3d 69 (Alaska 2013).

Cited in

Pub. Emples. Ret. Sys. v. Gallant, 153 P.3d 346 (Alaska 2007).

Section 24. Rights of Crime Victims.

Crime victims, as defined by law, shall have the following rights as provided by law: the right to be reasonably protected from the accused through the imposition of appropriate bail or conditions of release by the court; the right to confer with the prosecution; the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process; the right to timely disposition of the case following the arrest of the accused; the right to obtain information about and be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present; the right to be allowed to be heard, upon request, at sentencing, before or after conviction or juvenile adjudication, and at any proceeding where the accused’s release from custody is considered; the right to restitution from the accused; and the right to be informed, upon request, of the accused’s escape or release from custody before or after conviction or juvenile adjudication.

Cross references. —

For statutory provisions related to the rights of crime victims, see AS 12.61.010 .

Effective dates. —

This section took effect December 30, 1994 (18th Legislature’s Legislative Resolve No. 58).

Notes to Decisions

Presence of victim in courtroom. —

Trial judge may allow the victim of an alleged crime to remain in the courtroom while other witnesses testify (even though the victim had not yet testified), so long as the defendant may cross-examine the victim regarding any potential influence on the victim’s testimony. Proctor v. State, 236 P.3d 375 (Alaska Ct. App. 2010).

Victim’s application for resentencing. —

When a crime victim sought to re-open a defendant's sentencing due to being denied the right to be heard at sentencing, the application was moot because the defendant's restitution obligation had been satisfied, so it was unnecessary to consider if the victim was otherwise entitled to have the sentencing court reconsider the defendant's restitution obligation and if double jeopardy barred such a reconsideration. Barber v. Superior Court, — P.3d — (Alaska Ct. App. Aug. 10, 2016) (memorandum decision).

Nonprejudicial error. —

Even if it was error for the trial court to allow the prosecutor to specially introduce the police officer’s widow at the beginning of defendant’s trial, that error did not prejudice the fairness of the proceedings; the widow had a right to attend the trial under Alaska Const. art. I, § 24 and AS 12.61.010(a) , she testified during the state’s case-in-chief, and the trial court expressly cautioned the jurors not to allow their decision to rest on mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. Phillips v. State, 70 P.3d 1128 (Alaska Ct. App. 2003).

Victim is without standing regarding selection of rehabilitation program. —

Although this provision and the Alaska Victims’ Rights Act give crime victims the right to be heard at sentencing, neither this provision nor the Victims’ Rights Act gives crime victims the right to intervene in the litigation of a criminal case. Victim did not have standing to appeal her husband’s sentence, and the victim’s rights to be treated with fairness under this provision were honored. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Factors to consider for bail pending sentence appeal. —

While a superior court was to ensure that the rights of a victim were honored and that the victim's concerns were appropriately considered, particularly those concerns related to the victim's safety, the victim's desire for finality was an insufficient reason to deny defendant bail release. Likewise, community condemnation, although an appropriate consideration in crafting a sentence, was an inappropriate consideration in the context of a request for bail release pending resolution of an excessive sentence claim. Shepersky v. State, 401 P.3d 990 (Alaska Ct. App. 2017).

Superior court in deciding whether to grant bail pending a sentence appeal was to consider (1) whether defendant established by clear and convincing evidence that the proposed bail conditions would reasonably assure defendant's appearance and reasonably assure the safety of the victim and the community; and (2) the extent (if any) that defendant's legal rights were to be prejudiced if defendant was denied bail pending appeal but ultimately prevailed on defendant's underlying claim that the sentence was excessive. Shepersky v. State, 401 P.3d 990 (Alaska Ct. App. 2017).

Quoted in

Greywolf v. Carroll, 151 P.3d 1234 (Alaska 2007); State v. Carlin, 249 P.3d 752 (Alaska 2011).

Stated in

Taylor v. State, 977 P.2d 123 (Alaska Ct. App. 1999).

Cited in

Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005).

Collateral references. —

Validity, construction, and application of state constitutional or statutory victims’ bill of rights. 91 ALR5th 343.

Section 25. Marriage.

To be valid or recognized in this State, a marriage may exist only between one man and one woman.

Effective dates. —

This section took effect January 3, 1999 (the first sentence of the 20th Legislature’s HCS CSSJR 42(RLS).)

Editor’s notes. —

This section consists of the first sentence of 1998 Legislative Resolve 71 (20th Legislature’s HCS CSSJR 42(RLS)). The second sentence of 1998 Legislative Resolve 71 did not appear on the ballot pursuant to an order of the Supreme Court of the State of Alaska in Bess v. Ulmer , 985 P.2d 979 (Alaska 1999). The same order also prohibited 1998 Legislative Resolve 59 (20th Legislature’s HCS CSSJR 3(FIN)), which related to prisoner’s rights, from appearing on the ballot.

Notes to Decisions

Constitutionality. —

Alaska’s ban on same-sex marriage and refusal to recognize same-sex marriages lawfully entered in other states as set forth in Alaska Const. art. 1, § 25 and AS §§ 25.05.011, 25.05.013, was unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution because no state interest provided exceedingly persuasive justification for the significant infringement of rights that they inflicted upon homosexual individuals. Hamby v. Parnell, 56 F. Supp. 3d 1056 (D. Alaska 2014).

Discriminatory benefits programs held violative of equal protection to same-sex couples. —

Benefits programs were held to facially discriminate against same-sex domestic partners by covering married public employees but not domestic partners because, unlike opposite-sex domestic partners, same-sex domestic partners were barred from marriage under this section and thus were absolutely precluded from eligibility; the policy was not substantially related to government interests and thus violated equal protection under Alaska Const. art. I, § 1. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Standing of same-sex couples to challenge benefits programs. —

This section does not preclude challenges by same-sex couples to government policies that discriminate between married and unmarried couples; therefore, same-sex couples were able to challenge benefits programs that covered married couples but not domestic partners. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Denial of benefits to same-sex couples. —

It was not an abuse of discretion to dismiss a complaint for lack-of-ripeness where same-sex couple failed to demonstrate actual or impending injury caused by the denial of benefits that were available only to married people because no actual controversy ripe for adjudication had been pleaded. Brause v. Dep't of Health & Soc. Servs., 21 P.3d 357 (Alaska 2001).

Alaska’s same-sex marriage laws violate equal protection and due process clauses of Fourteenth Amendment. —

Alaska’s ban on same-sex marriage and refusal to recognize same-sex marriages lawfully entered in other states as set forth in Alaska Const. art. 1, § 25 and AS §§ 25.05.011, 25.05.013, was unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution because no state interest provided exceedingly persuasive justification for the significant infringement of rights that they inflicted upon homosexual individuals. Hamby v. Parnell, 56 F. Supp. 3d 1056 (D. Alaska 2014).

Article II The Legislature

Section 1. Legislative Power; Membership.

The legislative power of the State is vested in a legislature consisting of a senate with a membership of twenty and a house of representatives with a membership of forty.

Editor’s notes. —

The amendments proposed by 2010 Legislative Resolve 53 (SJR 21 am H) (number of house and senate districts) were rejected by voters.

Opinions of attorney general. —

The apparent invalidity of Alaska’s apportionment plan does not transform its legislature into an illegal assembly, prohibited from meeting and enacting laws. 1964 Alas. Op. Att'y Gen. No. 4.

Distinction between legislative and executive powers. See July 22, 1976 Op. Att’y Gen.

Vesting authority in the legislative Budget and Audit Committee to approve transfers between appropriation items violates the separation of powers doctrine and is an improper delegation of a legislative function to an interim committee. July 22, 1976 Op. Att’y Gen.

Section 13(3) of the 1976 budget bill, which authorized the Budget and Audit Committee to supervise the governor’s execution of the budget act, specifically over that portion of it which permitted him to transfer appropriation items constituted an encroachment on executive power and offended the Alaska Constitution. July 22, 1976 Op. Att’y Gen.

Notes to Decisions

Separation of powers doctrine requires that the blending of governmental powers will not be inferred in the absence of an express constitutional provision. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Limitation on legislative checks on governor’s power. —

The lack of ambiguity in Alaska Const., art. III, §§ 25 and 26 mandate that the supreme court interpret these express provisions as embodying not only the maximum parameters of the delegation of the executive appointive authority through the legislative confirmation function but, further, that they delineate the full extent of the constitution’s express grant to the legislative branch of checks on the governor’s power to appoint subordinate executive officers. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Alaska Const., art. III, §§ 25 and 26 mark the full reach of the delegated, or shared, appointive function to Alaska’s legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Delegation of power over appropriations. —

Former AS 37.07.080(g)(2) was unconstitutional for two reasons: first, because it delegated power over appropriations, a power which can only be exercised by the legislature in accord with the procedures mandated by Alaska Const., art. II; second, because the statute lacked standards to guide the exercise of administrative discretion. In either case, the statute violated the principle of separation of powers. State v. Fairbanks N. Star Borough, 736 P.2d 1140 (Alaska 1987).

Section 1, ch. 82, SLA 1975, is unconstitutional. —

Section 1, ch. 82, SLA 1975, which amends AS 39.05.020 and purports to authorize legislative “meddling” in the exercise of an executive power, i.e., the appointment of executive officials, is unconstitutional because it is violative of separation of powers requirements. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

The enabling legislation which created the former Alaska State Mortgage Association (former AS 44.56.010 — 44.56.280) is not an unconstitutional delegation of legislative power. The act’s purpose is explicitly stated and the association’s powers and limitations are provided for specifically. The complexity of the subject of secondary marketing facilities for housing mortgages precludes a more detailed delegation. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Duty of supreme court to reconcile challenged legislation with constitution. —

The supreme court is admittedly under a duty to reconcile, whenever possible, challenged legislation with the constitution by rendering a construction that would harmonize the statutory language with specific constitutional provisions. However, in fulfilling that duty, the extent to which the express language of the provision can be altered and departed from and the extent to which the infirmities can be rectified by the use of implied terms is limited by the constitutionally decreed separation of powers which prohibits the supreme court from enacting legislation or redrafting defective statutes. State v. Campbell, 536 P.2d 105 (Alaska 1975), overruled, Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Probation officers as executive officers. —

The constitution does not assign probation officers to the exclusive jurisdiction of either the executive or the judicial branch of government; therefore, the Alaska Legislature’s decision to place probation officers in the executive branch did not violate the separation of powers doctrine. Smith v. State Dep't of Cors., 872 P.2d 1218 (Alaska 1994).

Applied in

De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Quoted in

Boehl v. Sabre Jet Room, 349 P.2d 585 (Alaska 1960).

Cited in

Larson v. State, 564 P.2d 365 (Alaska 1977); Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983); Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988); State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999); Simpson v. Murkowski, 129 P.3d 435 (Alaska 2006).

Collateral references. —

16A Am.Jur.2d Constitutional Law, §§ 284 to 287, 288–299 to 312; 42 Am.Jur.2d, Initiative and Referendum, §§ 1 to 11; 72 Am.Jur.2d, States, Territories and Dependencies, §§ 38, 40 to 59.

16 C.J.S., Constitutional Law, §§ 218 to 301; 81A C.J.S., States § 80; 82 C.J.S., Statutes, §§ 5, 10.

Section 2. Members: Qualifications.

A member of the legislature shall be a qualified voter who has been a resident of Alaska for at least three years and of the district from which elected for at least one year, immediately preceding his filing for office. A senator shall be at least twenty-five years of age and a representative at least twenty-one years of age.

Opinions of attorney general. —

Any senator or representative who is sworn into office is entitled to all the rights, duties, privileges and compensation of that office from the date he is sworn in to the date he should leave office, whether that should be by resignation, action of his house, death, the running of his term or otherwise. This includes senators and representatives subject to the constitutional disabilities set forth in this section. February 9, 1960 Op. Att’y Gen.

Bills passed by the senate during period of service in that body of a senator who was at that time less than 25 years of age were valid. February 9, 1960 Op. Att’y Gen.

The state legislature may not change the qualifications for a public office where the state constitution has set forth the qualifications and the constitution has not specifically provided that the legislature has the power to change or add to the qualifications. 1963 Alas. Op. Att'y Gen. No. 6.

A statute declaring a candidate defeated in the primary election ineligible to run in the general election is unconstitutional, as it provides a change in the qualifications required for holding “constitutionally” created public offices. 1963 Alas. Op. Att'y Gen. No. 6.

Notes to Decisions

This section, setting residency requirements, is not invalid under the equal protection clause of Alaska Const., art. I, § 1. Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

The residency requirements of this section and AS 15.25.030 do not deprive an individual of equal protection by (1) limiting his right to seek and hold public office; (2) limiting his ability and the ability of voters who would support him to participate in the electoral process; and (3) restricting his right to freely travel between the states. Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

While objective tests for candidacy unavoidably place a burden upon the privilege of running for political office, the burden is both temporary and slight and is necessary to promote governmental interests which are compelling. Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

The requirements are necessary to permit exposure of the candidate to his prospective constituents so they may judge his character, knowledge and reputation, and they are needed to ensure that legislators are familiar with the diverse character of the state where they will participate in the law-making process. Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

This section and AS 15.25.030 collectively condition eligibility for seeking legislative office upon three years’ residency in the state and one year in the election district. Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

Proposed term-limits initiative was unconstitutional. —

Initiative proposal which would, if passed by state voters, limit terms of members of the Alaska legislature to two consecutive senate terms, four consecutive house terms, or eight consecutive years in any combination of house or senate service would impose “qualifications” on candidates’ and voters’ rights in addition to those set out in the Constitution and would therefore be unconstitutional. Thus, the lieutenant governor’s decision to deny certification of the initiative was correct. Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Cited in

Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977).

Stated in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Collateral references. —

72 Am.Jur.2d, States, Territories, and Dependencies, § 57.

Validity of requirement that candidate or public officer have been resident of governmental unit for specified period. 65 ALR3d 1048.

Section 3. Election and Terms.

Legislators shall be elected at general elections. Their terms begin on the fourth Monday of the January following election unless otherwise provided by law. The term of representatives shall be two years, and the term of senators, four years. One-half of the senators shall be elected every two years.

Cross references. —

For statutory provisions changing the date on which terms begin, see AS 24.05.080 .

Notes to Decisions

“Term”. —

With the exception of Alaska Const., art. IV, §§ 4 and 13, wherever “term” or “service at the pleasure of ” appears in the constitutional text originally adopted, the reference is to a period of service for a particular office. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Proposed term-limits initiative was unconstitutional. —

Initiative proposal which would, if passed by state voters, limit terms of members of the Alaska legislature to two consecutive senate terms, four consecutive house terms, or eight consecutive years in any combination of house or senate service would impose “qualifications” on candidates’ and voters’ rights in addition to those set out in the Constitution and would therefore be unconstitutional. Thus, the lieutenant governor’s decision to deny certification of the initiative was correct. Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Random order of names on ballot constitutional. —

The 1995 amendment to AS 15.15.030 (6), which replaced rotation of candidates’ names on election ballots with random determination of the order of names, does not impermissibly burden the right to vote or violate the requirements of the Alaska Constitution that elections be based on the will of the people, and that legislators and the governor be elected. Sonneman v. State, 969 P.2d 632 (Alaska 1998).

Cited in

State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999).

Collateral references. —

72 Am.Jur.2d, States, Territories and Dependencies, § 57.

81 C.J.S., States, §§ 92, 94, 95.

Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office. 39 ALR3d 303.

Section 4. Vacancies.

A vacancy in the legislature shall be filled for the unexpired term as provided by law. If no provision is made, the governor shall fill the vacancy by appointment.

Cross references. —

For statutory provisions for filling vacancies, see AS 15.40.320 —15.40.470.

Section 5. Disqualifications.

No legislator may hold any other office or position of profit under the United States or the State. During the term for which elected and for one year thereafter, no legislator may be nominated, elected, or appointed to any other office or position of profit which has been created, or the salary or emoluments of which have been increased, while he was a member. This section shall not prevent any person from seeking or holding the office of governor, secretary of state, or member of Congress. This section shall not apply to employment by or election to a constitutional convention.

Revisor’s notes. —

Senate Joint Resolution No. 2, “changing the name of the secretary of state to lieutenant governor” in 16 sections of the Alaska Constitution, approved by the voters August 25, 1970, inadvertently omitted express amendment of this section.

Opinions of attorney general. —

The purpose of the prohibition is to remove temptation and improper motives from considerations of legislators in voting for increased salaries or the creation of new offices. June 29, 1976 Op. Att’y Gen.

Because prohibitions like this are contrary to general public policy which favors eligibility for office, they are usually given a literal construction and are rarely expanded beyond their literal terms. June 29, 1976 Op. Att’y Gen.

Under Warwick v. State ex rel. Chance , 548 P.2d 384 (Alaska 1976), a member of one house of the legislature may run for a seat in the other house, when the pay for that seat in the other house has been increased by the legislature in which the candidate served. June 29, 1976 Op. Att’y Gen.

Reading the prohibition purely literally it does not apply to a legislator’s running for a seat in the other house of the legislature. His office, that of a “legislator,” remains the same. While the term of office differs (four years for members of the senate, two years for members of the house) and the constituency may differ, the “office” of “legislator” is constant. June 29, 1976 Op. Att’y Gen.

While the supreme court has limited the exceptions to the operation of this section to those expressly made by the Alaska Constitution, no exception is required for a legislator’s running for legislative office, because the prohibition has no application and should not be expanded to apply to that situattion. June 29, 1976 Op. Att’y Gen.

Neither a legislator nor the governor may sit as a regent of the University of Alaska while holding office. December 27, 1976 Op. Att’y Gen.

It would not be constitutional for the chairmen of the House and Senate finance committees to be members of the State Bond Committee. November 16, 1977 Op. Att’y Gen.

The prohibitions contained in this section are literally and strictly enforced. November 16, 1977 Op. Att’y Gen.

Notes to Decisions

The purpose sought to be accomplished by this section is not merely to prevent an individual legislator from profiting by an action taken by him with bad motives, but to prevent all legislators from being influenced by either conscious or unconscious selfish motives. Warwick v. State, 548 P.2d 384 (Alaska 1976).

The provisions of this section are unambiguous. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968); Warwick v. State, 548 P.2d 384 (Alaska 1976).

“Appointment” is synonymous with “employment”. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

“Position of profit”. —

See Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

And its intent. —

The term “position of profit” was intended to prohibit all other salaried nontemporary employment under the United States or the State of Alaska. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Superintendents of state schools and state school teachers hold positions of profit within the prohibition of this section. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Restriction not dependent on intent of legislator. —

There is nothing in this section making its restriction dependent on the intent of an individual legislator in voting for the bill in question. Warwick v. State, 548 P.2d 384 (Alaska 1976).

Prohibition applies for the full statutory period regardless of the acts of subsequent legislatures. Warwick v. State, 548 P.2d 384 (Alaska 1976).

The supreme court does not look to events subsequent to the appointment but to the legality of the appointment itself. If illegal at the time it was made, no subsequent act of a later legislature can make the appointment legal. Warwick v. State, 548 P.2d 384 (Alaska 1976).

Subsequent action by legislature. —

Salary increase enacted by a subsequent legislature did not render moot a case involving the issue of the legality of the original appointment of a legislator to an office the salary of which was increased by the legislature of which he was a member. Warwick v. State, 548 P.2d 384 (Alaska 1976).

Appointment of former legislator as commissioner of administration. —

The clear language of this section proscribed the appointment of a member of the Eighth Legislature during the period of the term for which he was elected and one year thereafter to the office of commissioner of administration, the salary of which was increased by the legislature of which he was a member. Warwick v. State, 548 P.2d 384 (Alaska 1976).

Decision not to be applied purely prospectively. —

See Warwick v. State, 548 P.2d 384 (Alaska 1976).

Proposed term-limits initiative was unconstitutional. —

Initiative proposal which would, if passed by state voters, limit terms of members of the Alaska legislature to two consecutive senate terms, four consecutive house terms, or eight consecutive years in any combination of house or senate service would impose “qualifications” on candidates’ and voters’ rights in addition to those set out in the Constitution and would therefore be unconstitutional. Thus, the lieutenant governor’s decision to deny certification of the initiative was correct. Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Applied in

State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Cited in

Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983).

Section 6. Immunities.

Legislators may not be held to answer before any other tribunal for any statement made in the exercise of their legislative duties while the legislature is in session. Members attending, going to, or returning from legislative sessions are not subject to civil process and are privileged from arrest except for felony or breach of the peace.

Cross references. —

For limitation on the governor’s power to sue the legislature, see art. III, sec. 16 of this constitution.

For immunity of legislators before tribunals, see AS 24.40.010 .

Opinions of attorney general. —

A “session” is the sitting of the legislature during the period of time that it is convened as a legislature to do business as a legislative body. 1959 Alas. Op. Att'y Gen. No. 8.

Immunity against civil process cannot be waived by the legislator since the Alaska immunity is intended to protect the public as well as serve the convenience of the legislators. 1959 Alas. Op. Att'y Gen. No. 8.

Executions are “civil process.” 1959 Alas. Op. Att'y Gen. No. 8.

The immunity of legislators under this section runs from the time the member is “going to” or “returning” from a legislative session; 24 hours a day, seven days a week from the time that the legislature is convened to the time that it adjourns sine die. 1959 Alas. Op. Att'y Gen. No. 8.

Members of the legislature have only a “privilege” from arrest, which must be asserted or it may be deemed waived. 1959 Alas. Op. Att'y Gen. No. 8.

The privilege from arrest does not extend to those violations of our law which constitute a “felony or breach of the peace”; in these two categories a member of the state legislature stands in the eyes of the law as any other citizen. 1959 Alas. Op. Att'y Gen. No. 8.

Notes to Decisions

Comparison to federal constitution. —

This section, while using different language, is essentially the same as its federal counterpart and was intended by the constitutional convention to be so. State v. Dankworth, 672 P.2d 148 (Alaska Ct. App. 1983).

Protected statements. —

This section protects any statements made or actions taken by a legislator that directly affect the enactment of legislation or the contents of bills to be submitted to the legislature whether or not the statements or actions occur in public. State v. Dankworth, 672 P.2d 148 (Alaska Ct. App. 1983).

Protected activities. —

Political activities of legislators, which include attempts on behalf of constituents to influence the executive branch in carrying out administrative responsibilities, i.e., prosecuting criminals, are not privileged; but legislative activities which are performed in order to directly influence the enactment of specific legislation are privileged. State v. Dankworth, 672 P.2d 148 (Alaska Ct. App. 1983).

Actions of senate finance chairman in acquiring property while promoting its sale to the state at a purchase price which would result in his receiving substantial profits and in using his influence as a legislator to secure an appropriation for the purchase by the state in the governor’s proposed budget were clearly legislative and therefore within the immunity granted in this section. State v. Dankworth, 672 P.2d 148 (Alaska Ct. App. 1983).

Two-part test used to determine whether activity is within the legitimate legislature sphere and thus within the protection of this section requires the activity to (1) be an integral part of the deliberative and communicative process by which members participate in committee and house proceedings and (2) address proposed legislation or some other subject within the legislature’s constitutional jurisdiction. Schultz v. Sundberg, 759 F.2d 714 (9th Cir. Alaska 1985).

State senate president who ordered the attendance of absent legislators to achieve a quorum so that the governor’s appointees could be considered for confirmation was entitled to absolute legislative immunity because his action took place on the floor of the senate, the business was clearly legislative, and an action to compel attendance of other legislators at a legislative session is an integral legislative function. Schultz v. Sundberg, 759 F.2d 714 (9th Cir. Alaska 1985).

The Alaska Constitution and the Alaska Statutes (AS 24.40.010 ) both provide immunity to legislators for statements made in the exercise of their legislative duties. Legislative duties include activities internal to the legislature, such as voting, speaking on the floor of the state house or in committee, authoring committee reports, introducing legislation, and questioning witnesses in legislative hearings. Legislative immunity allows the legislature to question acts by the executive without intimidation. It also protects legislators from the burdens of forced participation in private litigation. Whalen v. Hanley, 63 P.3d 254 (Alaska 2003).

A member of a state or local legislative body is absolutely privileged to publish defamatory matter concerning another in the performance of his legislative functions. The privilege is not confined to conduct on the floor of the legislative body. It extends to the work of legislative committees or sub-committees that are engaged in an investigation or other work authorized by the legislative body. Whalen v. Hanley, 63 P.3d 254 (Alaska 2003).

Immunity for nonparty legislators. —

Alaska’s immunity clause applies to legislators not parties in an underlying action. The president of the senate, the presiding officer at joint sessions of the legislature with the duty to call a joint session to order once convened by the governor and to preside over it, has a general duty to vote on the governor’s appointees during a joint session and specific duties to perform as senate president; and any conversations between the senate president and the governor may be seen as acts in preparation for performance of these duties and as such are privileged. Kerttula v. Abood, 686 P.2d 1197 (Alaska 1984).

Termination of legislative researcher is administrative act. —

Termination of a legislative researcher for the legislative affairs agency for expressing her economic and political views in an interview in violation of a “public neutrality requirement,” an unwritten and informal understanding, for which she declined a reprimand, and for refusing to abide by the director’s interpretation of the public neutrality requirement in the future was an administrative rather than a legislative act and was not within the scope of legislative immunity. State v. Haley, 687 P.2d 305 (Alaska 1984).

Collateral references. —

72 Am.Jur.2d, States, Territories and Dependencies, §§ 61 to 63.

81A C.J.S., States, §§ 96, 97.

Section 7. Salary and Expenses.

Legislators shall receive annual salaries. They may receive a per diem allowance for expenses while in session and are entitled to travel expenses going to and from sessions. Presiding officers may receive additional compensation.

Notes to Decisions

Cited in

Benavides v. State, 151 P.3d 332 (Alaska 2006).

Collateral references. —

72 Am.Jur.2d, States, Territories and Dependencies, § 57.

81A C.J.S., States, §§ 98 to 102.

Section 8. Regular Sessions.

The legislature shall convene in regular session each year on the fourth Monday in January, but the month and day may be changed by law. The legislature shall adjourn from regular session no later than one hundred twenty consecutive calendar days from the date it convenes except that a regular session may be extended once for up to ten consecutive calendar days. An extension of the regular session requires the affirmative vote of at least two-thirds of the membership of each house of the legislature. The legislature shall adopt as part of the uniform rules of procedure deadlines for scheduling session work not inconsistent with provisions controlling the length of the session.

Cross references. —

For statutory provisions changing the date the legislature convenes, see AS 24.05.090 .

Effect of amendments. —

The amendment effective December 30, 1984 (13th Legislature’s SCS CSHJR 2 (1983)) added the second, third, and fourth sentences.

Notes to Decisions

121-day legislative session authorized. —

This section authorizes a legislative session totaling 121 days. Alaska Christian Bible Inst. v. State, 772 P.2d 1079 (Alaska 1989).

The 120-day requirement in this section results in a 121-day durational limit on regular sessions of the legislature. The day the legislature convenes is not counted. The next day, day two of the session, is one day from the convening date. It is day one for purposes of the constitutional limitation. By arithmetic extension, 120 days from the date the legislature convenes is the 121st day of the session. Alaska Christian Bible Inst. v. State, 772 P.2d 1079 (Alaska 1989).

Collateral references. —

72 Am.Jur.2d, States, Territories and Dependencies, §§ 40 to 46.

81A C.J.S., States, §§ 103 to 107.

Section 9. Special Sessions.

Special sessions may be called by the governor or by vote of two-thirds of the legislators. The vote may be conducted by the legislative council or as prescribed by law. At special sessions called by the governor, legislation shall be limited to subjects designated in his proclamation calling the session, to subjects presented by him, and the reconsideration of bills vetoed by him after adjournment of the last regular session. Special sessions are limited to thirty days.

Cross references. —

For statutory provisions related to special sessions, see AS 24.05.100 .

Effect of amendments. —

The amendment effective December 23, 1976 (9th Legislature’s SCS CSHJR 11 (1975)), in the third sentence, deleted “or” preceding “to subjects” and added “and the reconsideration of bills vetoed by him after adjournment of the last regular session” to the end.

Opinions of attorney general. —

In the call for the special session, the governor may designate for consideration bills pending from the legislature’s first regular session. June 20, 1979 Op. Att’y Gen.

So long as they are designated as subjects in the governor’s call or subsequently presented by him to the special session, bills which have passed one house in a regular session may be acted upon by the other house in a special session. June 20, 1979 Op. Att’y Gen.

Collateral references. —

72 Am.Jur.2d, States, Territories and Dependencies, § 46.

81A C.J.S., States, §§ 105, 106.

Section 10. Adjournment.

Neither house may adjourn or recess for longer than three days unless the other concurs. If the two houses cannot agree on the time of adjournment and either house certifies the disagreement to the governor, he may adjourn the legislature.

Notes to Decisions

Quoted in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Collateral references. —

72 Am.Jur.2d, States, Territories and Dependencies, § 45.

81A C.J.S., States, § 107.

Section 11. Interim Committees.

There shall be a legislative council, and the legislature may establish other interim committees. The council and other interim committees may meet between legislative sessions. They may perform duties and employ personnel as provided by the legislature. Their members may receive an allowance for expenses while performing their duties.

Editor’s notes. —

The amendments proposed by 1978 Legislative Resolve 39 (HCS SJR 16) (approval of budget revisions) and 1980 Legislative Resolve 42 (SCS HJR 80) (approval of budget revisions) were rejected by voters.

Notes to Decisions

Applied in

Hayes v. Charney, 693 P.2d 831 (Alaska 1985).

Cited in

State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Section 12. Rules.

The houses of each legislature shall adopt uniform rules of procedure. Each house may choose its officers and employees. Each is the judge of the election and qualifications of its members and may expel a member with the concurrence of two-thirds of its members. Each shall keep a journal of its proceedings. A majority of the membership of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day and may compel attendance of absent members. The legislature shall regulate lobbying.

Cross references. —

For proceedings when a successful candidate for the state legislature or the campaign treasurer or deputy campaign treasurer of that candidate has been convicted of a violation of the state election campaign laws, see AS 15.13.380(i)(1) ; for statutory provisions relating to lobbying, see AS 24.45.

Opinions of attorney general. —

The legislature may provide by law for appeal to the courts to decide election contests involving members of the legislature or Congress. March 29, 1963 Op. Att’y Gen.

But the legislature is the sole judge of the election and qualifications of its members. February 9, 1960 Op. Att’y Gen.; March 29, 1963 Op. Att’y Gen.

The power to provide for additional grounds upon which to base an appeal to the courts in no way limits the legislature’s constitutional power to be the sole judge of the election and qualifications of its members. March 29, 1963 Op. Att’y Gen.

Notes to Decisions

Selection and removal of officers. —

The first sentence of this section does not mandate that there be uniformity of proceedings in both houses with respect to removal and selection of officers. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Removal of presiding officer. —

Majority of the members of the house of representatives may remove the presiding officer at any time. Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Quorum requirement. —

The quorum requirement set forth in this section can only reasonably be read as applying to the business of each house, not to the business of the legislature in joint session. Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

No implied right of access to legislative committee meetings or caucuses. —

The Alaska supreme court concluded that the framers of the Alaska Constitution did not intend that the constitution require that committee and caucus meetings of legislative bodies be conducted in public and held that there is no implied right of access to such meetings under the Alaska Constitution. Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987).

Quoted in

State v. Marshall, 633 P.2d 227 (Alaska 1981).

Cited in

Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Collateral references. —

72 Am.Jur.2d, States, Territories, and Dependencies, § 47.

81A C.J.S., States, §§ 83, 85, 86.

Section 13. Form of Bills.

Every bill shall be confined to one subject unless it is an appropriation bill or one codifying, revising, or rearranging existing laws. Bills for appropriations shall be confined to appropriations. The subject of each bill shall be expressed in the title. The enacting clause shall be: “Be it enacted by the Legislature of the State of Alaska.”

Opinions of attorney general. —

The people, in exercising their power under the Alaska Const., art. XI, § 2, are in a sense acting as a larger legislative body of the state, and this section does not restrict its effect to operation upon legislative bills alone. 1959 Alas. Op. Att'y Gen. No. 36.

Unless constitutional provisions relating to the form of bills are expressly made inapplicable to acts proposed and enacted by the initiative, such restrictions as to form will apply to acts proposed by the initiative. 1959 Alas. Op. Att'y Gen. No. 36.

The requirement that the secretary of state [now lieutenant governor] certify the form of an application under the Alaska Const., art. XI, § 2, would be meaningless if the general provisions of this section did not apply; there would be nothing to certify to since the article on initiative sets out no particular form of an initiative. 1959 Alas. Op. Att'y Gen. No. 36.

Alaska Const., art. XI, § 2, states that an application should contain the “bill” to be initiated; and this section of the constitution deals with the form of “every bill.” It is not to be presumed that the delegates to the constitutional convention intended to use varying definitions of the same words. 1959 Alas. Op. Att'y Gen. No. 36.

Notes to Decisions

Analysis

I.General Consideration

This section should be construed with considerable breadth. —

Otherwise statutes might be restricted unduly in scope and permissible subject matter, thereby multiplying and complicating the number of necessary enactments and their interrelationships. Gellert v. State, 522 P.2d 1120 (Alaska 1974).

What constitutes one subject for the purposes of this section is to be broadly construed. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978); Short v. State, 600 P.2d 20 (Alaska 1979); State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

The one-subject provision should not be construed so as to unnecessarily restrict the scope and operation of laws, or to multiply their number excessively, or to prevent the legislature from embracing in one act all matters properly connected with one general subject. Short v. State, 600 P.2d 20 (Alaska 1979).

Cases analyzed in terms of particular facts. —

Cases bringing into question the “one-subject” rule can be analyzed for the most part only in terms of the particular facts of each case. Gellert v. State, 522 P.2d 1120 (Alaska 1974).

Appropriations bills. —

Extending the scope of Alaska Const., art. II appropriations to encompass non-monetary asset transfers would create a host of problems in interpreting other articles of the Alaska Constitution. For example, if non-monetary asset transfers were deemed appropriations, application of Alaska Const., art. II, § 13, confining bills for appropriations only to appropriations, would become problematic. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Applicability to initiatives. —

The single subject standard is enacted at AS 15.45.040 with respect to initiatives; whether this limitation is within the legislature’s power under Alaska Const., art. XI, is questionable; but Alaska Const., art. XII, § 11, makes the law making power equal, and the restriction in this section, therefore, applies to initiatives. Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

The restriction requiring bills to be confined to one subject applies to initiatives, and an initiative in which all sections concern the subject “transportation” comports with this single subject standard. Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

Under AS 15.45.040 , the sponsors’ initiative violated the single-subject rule because the “soft dedication” of funds concerning the two aspects of the initiative was an insufficient link, and there was no other sufficient connection between the initiative’s proposed new oil production tax and its proposed new “clean elections” program. Croft v. Parnell, 236 P.3d 369 (Alaska 2010).

The legislative veto contained in AS 44.62.320(a), which provides that the “legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department,” violates this article of the state constitution. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

It was error to find a ballot initiative violated the single-subject rule because (1) initiatives were not subject to a stricter one-subject standard than legislation, (2) the initiative's provisions embraced the single subject of election reform and shared the nexus of election administration, (3) the initiative's text showed no transparent attempt to garner voter support through completely unrelated provisions, and (4) nothing suggested the initiative's title was misleading or the initiative was so unclear that the initiative gave rise to a concern about confusion, fraud, or inadvertence. Meyer v. Alaskans for Better Elections, 465 P.3d 477 (Alaska 2020).

Quoted in

Juneau v. Hixson, 373 P.2d 743 (Alaska 1962); Van Brunt v. State, 646 P.2d 872 (Alaska Ct. App. 1982).

Cited in

Simpson v. Murkowski, 129 P.3d 435 (Alaska 2006).

II.Law to Embrace but One Subject, Described in Title
A.In General

The primary aim of “one-subject” provisions in state constitutions is the restraint of log-rolling in the legislative process. Gellert v. State, 522 P.2d 1120 (Alaska 1974); Short v. State, 600 P.2d 20 (Alaska 1979).

Requirements for satisfying one-subject rule. —

To satisfy the Confinement Clause, an appropriations bill (1) must contain qualifying language of a minimum necessary to explain the Legislature’s intent regarding how the money appropriated is to be spent; (2) must not administer the program of expenditures; (3) must not enact law or amend existing law; (4) must not extend beyond the life of the appropriation; and (5) must contain language that is germane, or appropriate, to an appropriations bill. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Application of one-subject rule. —

The one-subject rule is not restricted to those legislative acts which also must be approved by the voters; rather, it applies equally to all enactments of the legislature. Short v. State, 600 P.2d 20 (Alaska 1979).

An argument that measures submitted to the voters are deserving of enhanced protection under the one-subject rule of this section has little merit. Except to the extent that a bond proposition authorizing complicated and diverse projects is so confusing that it fails to provide the notice to the voters of the subject matter involved which the due process clause requires, the policies behind the one-subject rule are the same as regards the member of the state legislature who must vote on the measure in the first instance and the voters who must subsequently ratify the enactment. Short v. State, 600 P.2d 20 (Alaska 1979).

Bill need only embrace some one general subject. —

In determining whether a bill is confined to one subject, all that is necessary is that the act should embrace some one general subject; and by this is meant, merely, that all matters treated of should fall under some one general idea, be so connected with or related to each other logically or in popular understanding, as to be parts of, or germane to, one general subject. Gellert v. State, 522 P.2d 1120 (Alaska 1974); North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978).

The test set out in Gellert v. State, 522 P.2d 1120 (Alaska 1974), requires no more than that the various provisions of single legislative enactment fairly relate to the same subject, or have a natural connection therewith. Short v. State, 600 P.2d 20 (Alaska 1979).

State taxation is not an unduly broad category under the one-subject rule. Just as taxation has been held to be the single subject of a statute imposing different kinds of taxes upon different things, it is also the subject of a statute granting various tax credits and exemptions and clarifying the circumstances under which taxes may be levied. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978).

Nature and purpose of title. —

The purpose of this constitutional provision is to prevent the inclusion of incongruous and unrelated matters in the same measure and to guard against inadvertence, stealth and fraud in legislation. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

The purpose of the constitutional requirement that every bill be confined to one subject is to prevent the inclusion of incongruous and unrelated matters in the same bill in order to get support for it which the several subjects might not separately command, and to guard against inadvertence, stealth and fraud in legislation. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966); Gellert v. State, 522 P.2d 1120 (Alaska 1974).

Violation must be substantial and plain. —

In order to warrant the setting aside of enactments for failure to comply with this section, the violation must be substantial and plain. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966); Gellert v. State, 522 P.2d 1120 (Alaska 1974).

No act will be set aside for failing to comply with this provision except where the violation is both substantial and plain. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978); Short v. State, 600 P.2d 20 (Alaska 1979); State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

The courts disregard mere verbal inaccuracies. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966); Gellert v. State, 522 P.2d 1120 (Alaska 1974).

And resolve doubts in favor of validity. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966); Gellert v. State, 522 P.2d 1120 (Alaska 1974).

B.Illustrative Cases
1.Titles Held Sufficient

Taxation. —

Chapter 94, SLA 1977, relating to both state and local taxation, does not violate this section, which requires every bill to be confined to one subject. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978).

Title of SLA 1964, Sp. Sess., ch. 1, held constitutional. —

See Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

The general heading “land” is not an unduly broad subject for purposes of this section. State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

Bill entitled “An Act Relating to Land; And Providing for an Effective Date” did not violate this section where every section of the bill in some respect concerns land although many of its provisions had nothing else in common. State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982).

Legislation providing for flood control and small boat harbor projects. —

Chapter 201, SLA 1972, which provided for flood control and small boat harbor projects, was not in violation of this section. Gellert v. State, 522 P.2d 1120 (Alaska 1974).

There is an underlying purpose by which the inclusion of boat harbors and flood control projects in one bill can be justified. Both these topics pertain to one ongoing plan for the development of water resources and to the method of funding that plan. Gellert v. State, 522 P.2d 1120 (Alaska 1974).

Bonds. —

Chapter 139, SLA 1978, authorizing the sale of bonds for construction and improvement of certain correctional facilities throughout the state and authorizing similar bonds for public safety facilities, is not violative of the one-subject provision of this section. Short v. State, 600 P.2d 20 (Alaska 1979).

Sentences for felonies. —

Chapter 143, SLA 1982, which amended AS 12.55.125 , did not violate this section or Alaska Const., art. II, § 14. Galbraith v. State, 693 P.2d 880 (Alaska Ct. App. 1985).

Civil actions. —

Even though the provisions of ch. 26, SLA 1997 concern different matters, they are all within the single subject of “civil actions.” Evans v. State, 56 P.3d 1046 (Alaska 2002).

Collateral references. —

73 Am.Jur.2d, Statutes, §§ 43 to 57, 106 et seq.

82 C.J.S., Statutes, §§ 202 to 216.

Section 14. Passage of Bills.

The legislature shall establish the procedure for enactment of bills into law. No bill may become law unless it has passed three readings in each house on three separate days, except that any bill may be advanced from second to third reading on the same day by concurrence of three-fourths of the house considering it. No bill may become law without an affirmative vote of a majority of the membership of each house. The yeas and nays on final passage shall be entered in the journal.

Cross references. —

For statutory provisions relating to enactments, see AS 24.08.

Notes to Decisions

One purpose of requirements in this section for passing bills is to ensure that the legislature knows what is passing. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978); State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); Van Brunt v. State, 653 P.2d 343 (Alaska Ct. App. 1982).

The requirements of this section are mandatory, not permissive. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Operation of majority-vote requirement. —

Majority-vote requirement in this section operates as a constitutionally based subject-matter restriction, prohibiting the enactment of any law that proposes to modify the majority-vote standard. Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

No enactment of change by committee report. —

The legislature enacts laws by the passage of bills meeting the required formalities. It may not enact a law or change one by committee report. Such a report may be useful in interpreting an enacted statute, but it is not itself the statute. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978).

The “third reading” and “final passage” requirements were meant to be construed and applied as independent terms. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

Application of “three readings” requirement to initial passage. —

Only the “three readings” requirement can be read as pertaining to the initial passage in each house. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

When “three readings” requirement extends to amended bill. —

The constitutional requirement that bills be read three times does not extend to an amended bill, even where the amendments substantially alter the bill, unless the amendments change the subject of the bill. Van Brunt v. State, 653 P.2d 343 (Alaska Ct. App. 1982).

Amendments made in free conference committee amending the law dealing with driving while intoxicated did not so change the nature of the bill, which changed various state liquor laws, that it was required to again go through three readings. Van Brunt v. State, 653 P.2d 343 (Alaska Ct. App. 1982).

Majority vote in each house. —

Chapter 143, SLA 1982, which amended AS 12.55.125 , did not violate the Alaska Const., art. II, § 13 or this section. Galbraith v. State, 693 P.2d 880 (Alaska Ct. App. 1985).

The court of appeals rejected defendant’s argument that AS 12.47.010 was adopted in a bill that was not passed by both houses of legislature for the same reasons as in Galbraith v. State, 693 P.2d 880 (Alaska Ct. App. 1985). Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Vote to which requirements apply. —

The “affirmative vote of the majority of the membership” and recorded vote requirements were not limited to the initial passage in each house and are most naturally read as applying to the vote by which a bill actually and finally becomes law. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

Initiative concerning number of votes needed to enact law precluded. —

Because the legislature itself cannot change the constitutional majority-vote standard by enacting a law, and an initiative cannot enact laws that the legislature has no authority to enact, it follows that this section prevents an initiative from addressing the subject of the number of votes needed to enact a bill into law. Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

A proposed initiative requiring a super-majority legislative vote to enact or increase taxes was properly refused, where this section prohibited the enactment of any law that proposed to modify the majority-vote standard, and thus, the proposed initiative failed to comply with constitutional provisions regulating initiatives. Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Purposes of “final passage” requirement. —

The requirement that the vote on final passage be by individual yeas and nays, and be recorded in the relevant house journal, is a formality embodying several purposes: to ensure deliberation prior to passage, to ensure that the requisite majority of each house affirmatively votes to enact a bill into law, and to provide a public record of the vote cast by each legislator. It is thus designed to engender a responsible legislative process worthy of the public trust. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

The requirements that the vote of each legislator on final passage of a bill be recorded and that no bill may pass without an affirmative vote of a majority of the membership of each house are meant to ensure deliberation prior to passage, to ensure that the requisite majority of each house affirmatively votes to enact a bill into law, and to provide a public record of the vote cast by each legislator. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Meaning of “final passage” requirement. —

“Final passage” is not a legislative term of art, referring only to the initial passage of a bill in its house of origin, and to the initial passage of the bill, in amended or original form, by the second house. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

“Final passage” refers to that vote which is the final one in a particular house with regard to a particular bill. Such a final vote may occur at various stages. It may be on the third reading of a bill; it may be the vote to concur in the amendments adopted by the second house; it may be the vote to recede from amendments not concurred in by the other house; or it may be the vote to adopt the amendments proposed by a conference committee. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

Recorded individual vote requirement. —

A bill substituted by a free conference committee is not exempt from the constitutional requirement of a recorded individual vote. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

Passage by voice vote violated section. —

Where the free conference committee recommended adoption of a version of ch. 102, SLA 1976 that differed in many respects from the version originally passed by the house; the free conference committee’s bill was passed by the senate by a recorded vote; but in the house there was no roll call or recorded vote and the free conference committee bill was passed there by a simultaneous voice vote, this voice vote constituted “final passage” of ch. 102, SLA 1976 and thus violated the recorded vote requirement of this section. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

Statutes immune from challenge for voice vote violation. —

In light of the fact that the decision was one of first impression, that substantial reliance had followed from the legislature’s alternative interpretation of law, that undue hardship would have resulted from retroactive application of the holding, and that the rationale of the holding did not compel retroactivity, the supreme court held that any statute heretofore passed by voice vote on final passage, subsequent to a recorded vote on third reading, should be immune from challenge under its holding in this decision. Plumley v. George E. Hale, M.D., Inc., 594 P.2d 497 (Alaska 1979).

The legislative veto contained in AS 44.62.320(a), which provides that the “legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department,” violates this article of the state constitution. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Legislation stating policy to seek change in federal law. —

Nothing in the state constitution limits the legislature’s power to enact laws making it the state’s policy to seek a change in existing federal law. Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

Legislation limiting the public-interest exception in attorney’s fees court rule. —

The public interest litigant exception to Alaska R. Civ. P. 82 is a rule of substantive law, and is not merely procedural, and could be changed by the Legislature without a two-thirds vote; therefore, Chapter 86, SLA 2003, prohibiting discrimination in the awarding of attorney fees and costs in civil actions or appeals involving public interest litigants, which limited application of the public interest litigant exception, is not invalid. State v. Native Village of Nunapitchuk, 156 P.3d 389 (Alaska 2007).

Quoted in

Johnson v. State, 577 P.2d 706 (Alaska 1978); Van Brunt v. State, 646 P.2d 872 (Alaska Ct. App. 1982); Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Cited in

Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); In re Necessity for the Hospitalization of Lucy G., 448 P.3d 868 (Alaska 2019).

Collateral references. —

73 Am.Jur.2d, Statutes, §§ 17 to 36.

82 C.J.S., Statutes, §§ 19, 36 to 42.

Section 15. Veto.

The governor may veto bills passed by the legislature. He may, by veto, strike or reduce items in appropriation bills. He shall return any vetoed bill, with a statement of his objections, to the house of origin.

Opinions of attorney general. —

The purpose of the veto is to prevent the adoption of undesirable legislation; the veto power is not a power to change the effect of proposed laws or to do anything concerning them except to approve or disapprove them as a whole. 1963 Alas. Op. Att'y Gen. No. 18.

The veto power may be exercised only against entire bills; and it may not be exercised upon sections of bills except in the case of appropriation bills. 1963 Alas. Op. Att'y Gen. No. 18.

The referendum is a veto power that is analogous to the veto power vested in the governor by this section. 1963 Alas. Op. Att'y Gen. No. 18.

The referendum and the veto power serve similar functions in the legislative process; hence, the limitations of one apply to the other, except as distinctions are specified in the constitution. 1963 Alas. Op. Att'y Gen. No. 18.

The governor’s authority under the constitution is to reduce or strike appropriation items by veto and no other way. 1963 Alas. Op. Att'y Gen. No. 9.

For the legislature to authorize or direct the governor to exercise what amounts to a year-long continuing veto over items of appropriation, violates this section. 1963 Alas. Op. Att'y Gen. No. 9.

The constitution provides the sole authority of the governor when he acts in a legislative capacity. 1964 Alas. Op. Att'y Gen. No. 9.

Notes to Decisions

Intent of delegates to create strong executive branch. —

The constitutional history underlying this provision indicates a desire by the delegates to create a strong executive branch with “a strong control on the purse strings” of the state. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Purpose of condition that governor must have opportunity to veto. —

The condition that no bill shall become law unless the governor has the opportunity to veto it was granted to preserve the integrity of the executive branch of government and thus maintain an equilibrium of governmental powers, and to act as a check upon hasty and ill-considered legislation. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Appropriations bills. —

Non-monetary asset transfers are not appropriations subject to the governor’s enhanced veto under Alaska Const., art. II. Therefore, a 2000 bill (ch. 136, SLA 2000) allowing the University of Alaska to select between 250,000 and 260,000 acres of state lands which would then be conveyed to the university to manage was not an appropriation, and an override of the governor’s veto required only a two-thirds majority in the legislature, not the three-fourths majority required for the overriding of a veto of an appropriations bill. Having received the required two-thirds majority, the veto was successfully overridden and the bill became law. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

The required local contribution was constitutional because the existing funding formula did not violate the dedicated funds clause, the appropriations clause, or the governor’s veto where the minutes of the constitutional convention and the historical context of those proceedings revealed that the delegates did not intend for required local contributions to be a state tax or license; the local contribution never entered the state treasury. State v. Ketchikan Gateway Borough, 366 P.3d 86 (Alaska 2016).

Purpose of item veto power. —

The item veto power is intended only to limit the legislature’s appropriation power, not to grant the executive a quasi-legislative appropriation power permitting appropriations the legislature never enacted. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Meaning of “item.” —

The word “item” in the item veto power is defined as “a sum of money dedicated to a particular purpose,” and this power does not permit the governor to strike from an appropriation bill descriptive language that does not specify the amount appropriated. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Use of line item veto by governor. —

Governor had the power to exercise a line item veto of a longevity bonus for senior citizens because the state’s payments for the bonus were made out of annual appropriations. Simpson v. Murkowski, 129 P.3d 435 (Alaska 2006).

Governor used item veto power improperly. —

Where the legislature appropriated funds to the Department of Corrections for new community residential centers (CRCs) and the governor vetoed the following passage from the appropriation: “This appropriation is for new CRC beds, not owned or controlled by municipalities, to provide space in institutions for violent felons. All beds will meet department standards for Community Residential Centers. Contracts will be competitively bid,” the governor could not veto these three sentences because they were not an “item” subject to his constitutionally-granted item veto power. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Where the legislature enacted three appropriations for the Alaska Seafood Marketing Institute (ASMI) and each contained identical language which made the appropriation “contingent on ASMI having no employees who are located outside Alaska whose positions are classified at more than Range 21 on the state salary schedule under AS 39.27.011 ,” the governor did not validly exercise the item veto power when he struck this language from the three ASMI appropriations because what he struck were not “items” subject to the item veto. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

The governor’s veto of language which referred to the efficiency of a program that appropriated funds to the Department of Corrections for a therapeutic treatment community program in Valdez was invalid, because the vetoed language was not an “item” subject to the governor’s veto power where it did not appropriate any sum of money to a particular purpose. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Governor’s “intent” objection upheld. —

The governor’s “intent” objection to language in an act was constitutionally adequate where it met the minimum-of-coherence standard because the language struck from that chapter could be fairly characterized as “intent” language, and the objection clearly referred to the vetoed passages. Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001).

Only bills are approved or vetoed, not the contents of the house and senate journals, or the tape recordings of committee and floor debates. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978).

The governor’s exercise of the item veto to general obligation bond authorizations is unconstitutional since general obligation bond authorizations do not qualify as appropriations under this section. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Any time the legislature allocates moneys from the general fund or special funds, the governor’s line item veto would be appropriate. However, the sale of general obligation bonds is the commitment of the state to a debtor relationship with those who purchase the bonds, and is therefore distinguishable from such allocations. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Differentiating certain appropriations from debt financing. —

There are valid reasons for differentiating between debt financing and other appropriations from public revenues. First, the check on the power of the legislature that lies in the people means there is less need for the executive to have a “strong control on the purse strings.” Second, the purposes are quite often different. Third, the executive still has the power to veto any bill in its entirety. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Less need for line item veto power where there is requirement of voter approval. —

The contracting of state debt is governed by the Alaska Constitution which provides in art. IX, § 8 and except for specifically defined situations, the debt may not be contracted without the approval of the electorate. This requirement operates as a check on legislative power just as the item veto power of the governor checks legislative appropriations. However, each functions in its own realm. Where there is a requirement of voter approval, there is less need for the executive check on legislative power. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

In special obligation bonding, the general taxing power of the state is not pledged. The bonds are paid by revenues generated by the project. In such a case, the “purse” of the state would be only slightly affected — only by the moneys required to float the bond, which is usually paid back out of the special fund. In such circumstances, where there is a check on the legislature’s discretion coming directly from the people and repayment coming directly from the project, there is little need for the extraordinary executive power of the line item veto. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

The legislative veto contained in AS 44.62.320(a), which provides that the “legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department,” violates this article of the state constitution. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Stated in

Wielechowski v. State, 403 P.3d 1141 (Alaska 2017).

Cited in

Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Collateral references. —

73 Am.Jur.2d, Statutes, §§ 32 to 36.

82 C.J.S., Statutes, §§ 44 to 53.

Section 16. Action Upon Veto.

Upon receipt of a veto message during a regular session of the legislature, the legislature shall meet immediately in joint session and reconsider passage of the vetoed bill or item. Bills to raise revenue and appropriation bills or items, although vetoed, become law by affirmative vote of three-fourths of the membership of the legislature. Other vetoed bills become law by affirmative vote of two-thirds of the membership of the legislature. Bills vetoed after adjournment of the first regular session of the legislature shall be reconsidered by the legislature sitting as one body no later than the fifth day of the next regular or special session of that legislature. Bills vetoed after adjournment of the second regular session shall be reconsidered by the legislature sitting as one body no later than the fifth day of a special session of that legislature, if one is called. The vote on reconsideration of a vetoed bill shall be entered on the journals of both houses.

Cross references. —

See notes to Alaska Const., art. II, § 15.

Effect of amendments. —

The amendment effective December 23, 1976 (9th Legislature’s SCS CSHJR 11(1975)) inserted “during a regular session of the legislature” in the first sentence and added the present fourth and fifth sentences.

Notes to Decisions

Purpose for condition that governor must have opportunity to veto. —

The condition that no bill shall become law unless the governor has the opportunity to veto it was granted to preserve the integrity of the executive branch of government and thus maintain an equilibrium of governmental powers, and to act as a check upon hasty and ill-considered legislation. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

The legislative veto contained in AS 44.62.320(a), which provides that the “legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department,” violates this article of the state constitution. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Override authority. —

By asking the court to rule that the state legislature did not have authority under this section to consider a vote to override his veto of legislation, and that the legislation could not become law until the legislature properly exercised its veto override provisions, the governor sought to enforce compliance with a constitutional mandate and to restrain violation of a constitutional power. Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

Non-monetary asset transfers are not appropriations subject to the governor’s enhanced veto under Alaska Const., art. II. Therefore, a 2000 bill (ch. 136, SLA 2000) allowing the University of Alaska to select between 250,000 and 260,000 acres of state lands which would then be conveyed to the university to manage, was not an appropriation, and an override of the governor’s veto required only a two-thirds majority in the legislature, not the three-fourths majority required for the overriding of a veto of an appropriations bill. Having received the required two-thirds majority, the veto was successfully overridden and the bill became law. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Applied in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Quoted in

Simpson v. Murkowski, 129 P.3d 435 (Alaska 2006); Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007); Wielechowski v. State, 403 P.3d 1141 (Alaska 2017).

Collateral references. —

73 Am.Jur.2d, Statutes, §§ 32 to 35.

82 C.J.S., Statutes, §§ 44 to 54.

Section 17. Bills Not Signed.

A bill becomes law if, while the legislature is in session, the governor neither signs nor vetoes it within fifteen days, Sundays excepted, after its delivery to him. If the legislature is not in session and the governor neither signs nor vetoes a bill within twenty days, Sundays excepted, after its delivery to him, the bill becomes law.

Cross references. —

See notes to Alaska Const., art. II, § 15. For time statutes become law and take effect, see AS 01.10.070 .

Opinions of attorney general. —

Where the legislature is in session and the bill under consideration does not have an effective date clause, then, in that event, under the provisions of this section, the bill becomes law on the 16th day, excluding Sundays, after its delivery to the governor because of the nonaction on the part of the chief executive, and under the Alaska Constitution, art. II, § 18, the law being considered becomes effective on the 90th day after enactment of the bill into law. 1959 Alas. Op. Att'y Gen. No. 21.

If the legislature is not in session and the bill under consideration does not have an effective date clause, then, in that event, under the provisions of this section the bill becomes law on the 21st day, excluding Sundays, after its delivery to the governor, and, under the Alaska Constitution, art. II, § 18, the law becomes effective on the 90th day after enactment of the bill into law. 1959 Alas. Op. Att'y Gen. No. 21.

An unsigned bill cannot become law until the expiration of the 20 days, regardless of any notice given by the governor. 1971 Alas. Op. Att'y Gen. No. 2.

When the legislature is not in session, the 20-day limitation applies to any bill in the possession of the governor if he does not sign or veto it; that is, he has 20 days after delivery in which to act. This is true even if the bill was delivered to his office before the adjournment of the legislative session. 1971 Alas. Op. Att'y Gen. No. 3.

Notes to Decisions

Purpose for condition that governor must have opportunity to veto. —

The condition that no bill shall become law unless the governor has the opportunity to veto it was granted to preserve the integrity of the executive branch of government and thus maintain an equilibrium of governmental powers, and to act as a check upon hasty and ill-considered legislation. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

The legislative veto contained in AS 44.62.320(a), which provides that the “legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department,” violates this article of the state constitution. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Act not suspended between its effective date and its rejection by referendum. —

In the light of the clear wording of this section, art. II, § 18 and art. XI, § 6, the framers of the constitution and the people who adopted it intended that the effectiveness of an act passed by the legislature should not be suspended during the period between its effective date and its rejection by the referendum. If they had intended otherwise they would have expressly so provided in the constitution. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Applied in

State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981); Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Quoted in

Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Collateral references. —

73 Am.Jur.2d, Statutes, § 33.

82 C.J.S., Statutes, § 53.

Section 18. Effective Date.

Laws passed by the legislature become effective ninety days after enactment. The legislature may, by concurrence of two-thirds of the membership of each house, provide for another effective date.

Cross references. —

See notes to Alaska Const., art. II, § 17. For time statutes become law and take effect, see AS 01.10.070 .

Opinions of attorney general. —

If the legislature is in or out of session and the bill under consideration has an effective date clause, then, in that event, the effective date to be recorded will be controlled by the terms of the clause establishing the effective date computed from the last moment in which the governor could have affirmatively acted. 1959 Alas. Op. Att'y Gen. No. 21.

Notes to Decisions

Purpose. —

The clause that laws do not become effective, unless a two-thirds vote of the membership of each house provides otherwise, until 90 days after they are enacted is designed to provide a fair opportunity to those people affected by legislation to learn of the laws they must live by. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

The legislative veto contained in AS 44.62.320(a), which provides that the “legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department,” violates this article of the state constitution. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Act not suspended between its effective date and its rejection by referendum. —

In the light of the clear wording of this section, art. II, § 18 and art. XI, § 6, the framers of the constitution and the people who adopted it intended that the effectiveness of an act passed by the legislature should not be suspended during the period between its effective date and its rejection by the referendum. If they had intended otherwise they would have expressly so provided in the constitution. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Laws containing retroactive provisions. —

This section does not require a two-thirds vote of both houses of the legislature for the passage of laws containing retroactive provisions. ARCO Alaska v. State, 824 P.2d 708 (Alaska 1992).

Applied in

State v. Kaatz, 572 P.2d 775 (Alaska 1977); State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981); Atlantic Richfield Co. v. State, 705 P.2d 418 (Alaska 1985).

Quoted in

In re Brewer, 430 P.2d 150 (Alaska 1967); Fowler v. State, 70 P.3d 1106 (Alaska Ct. App. 2003); Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007); Pfeifer v. State, 260 P.3d 1072 (Alaska 2011).

Stated in

Anchorage Mun. Emples. Ass'n v. Municipality of Anchorage, 618 P.2d 575 (Alaska 1980).

Cited in

North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978); Sowinski v. Walker, 198 P.3d 1134 (Alaska 2008).

Collateral references. —

72 Am.Jur.2d, Statutes, §§ 245 to 254.

82 C.J.S., Statutes, §§ 388 to 406.

Section 19. Local or Special Acts.

The legislature shall pass no local or special act if a general act can be made applicable. Whether a general act can be made applicable shall be subject to judicial determination. Local acts necessitating appropriations by a political subdivision may not become effective unless approved by a majority of the qualified voters voting thereon in the subdivision affected.

Notes to Decisions

Legislative powers governed by this section. —

This section governs the exercise of all legislative powers expressly granted by other portions of the constitution. Abrams v. State, 534 P.2d 91 (Alaska 1975).

No exceptions to prohibition of this section. —

There is no intimation in the language of this section or in the articles concerning local government which would create an exception to this prohibition against local or special laws. Abrams v. State, 534 P.2d 91 (Alaska 1975).

Alaska Const., art. X, § 3 was not intended to operate as an exception to the “general law” rule of this section. Abrams v. State, 534 P.2d 91 (Alaska 1975).

Legislation need not operate evenly in all parts of the state to avoid being classified as local or special. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Legislation does not become “local” merely because it operates only on a limited number of geographical areas rather than on a statewide geographical basis. Abrams v. State, 534 P.2d 91 (Alaska 1975).

A legislative act may affect only one of a few areas and yet relate to a matter of statewide concern or common interest. Abrams v. State, 534 P.2d 91 (Alaska 1975).

The test to be employed in determining whether legislation contravenes this section is substantially the same as that applicable to nonsuspect classifications challenged as violative of equal protection. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Examining both the legislative goals and the means used to advance them, the supreme court must determine whether the legislation bears a “fair and substantial relationship” to legitimate purposes. If this standard is satisfied, the bill will not be invalid because of incidental local or private advantages. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

The ultimate question is whether a legislative act, attacked as “local” or “special,” is reasonably related to a matter of common interest to the whole state. Abrams v. State, 534 P.2d 91 (Alaska 1975).

Whether a general act can be made applicable is subject to judicial determination. Abrams v. State, 534 P.2d 91 (Alaska 1975).

A valid general act may effectively repeal or supersede provisions of prior acts. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Legislation creating the Eagle River-Chugiak Borough. —

Chapter 145, SLA 1974, which created the Eagle River-Chugiak Borough, is both special and local legislation. That Act provides a method of creating a new borough which is peculiar to the locality where it is applicable. The subject matter can hardly be said to be of statewide interest or impact. There is nothing in the nature of the involved area which justifies a departure from the general law scheme of incorporating a new borough. Abrams v. State, 534 P.2d 91 (Alaska 1975).

Chapter 19, SLA 1976, does not conflict with constitutional prohibitions against special or local legislation. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Chapter 19, SLA 1976, authorizing a three-way exchange of land between the State of Alaska, the United States government and a regional corporation of Alaska natives, is a general act, addressing a matter which is unique, but of statewide concern. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

AS 18.07.111 (8), defining health care facilities, applies uniformly and does not create a closed class. —

Because AS 18.07.111 (8), defining facilities required to apply for a certificate of need, applies uniformly to any entity seeking to construct an independent diagnostic testing facility, does not specifically target defendant facility, and the class covered by the statute would grow if additional health care providers sought to construct independent diagnostic testing facilities, the statute does not create a closed class or violate the constitutional prohibition against special acts, Alaska Const. art. II, § 19. Bridges v. Banner Health, 201 P.3d 484 (Alaska 2008), modified, — P.3d — (Alaska 2009) (memorandum decision).

Modification of oil and gas leases. —

A legislative enactment approving and giving effect to modifications of particular oil and gas leases did not violate this section because of the unique nature of the leases, and because the enactment fairly and substantially related to legitimate state purposes. Baxley v. State, 958 P.2d 422 (Alaska 1998).

Quoted in

Jordan v. Reed, 544 P.2d 75 (Alaska 1975); Falke v. Fairbanks N. Star Borough, 648 P.2d 597 (Alaska 1982); Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Cited in

Lynden Transp. v. State, 532 P.2d 700 (Alaska 1975); North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978); Evans v. State, 56 P.3d 1046 (Alaska 2002).

Collateral references. —

73 Am.Jur.2d, Statutes, §§ 3 to 6.

82 C.J.S., Statutes, §§ 163, 175 to 198.

Validity of statutory classifications based on population — jury selection statutes. 97 ALR3d 434.

Validity of statutory classifications based on population — zoning, building, and land use statutes. 98 ALR3d 679.

Validity of statutory classifications based on population — intoxicating liquor statutes. 100 ALR3d 850.

Validity, as to claim alleging design or building defects, of statutes imposing time limitations upon action against architect, engineer, or builder for injury or death arising out of defective or unsafe condition of improvement to real property. 5 ALR6th 497.

Section 20. Impeachment.

All civil officers of the State are subject to impeachment by the legislature. Impeachment shall originate in the senate and must be approved by a two-thirds vote of its members. The motion for impeachment shall list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives. A supreme court justice designated by the court shall preside at the trial. Concurrence of two-thirds of the members of the house is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but shall not prevent proceedings in the courts on the same or related charges.

Cross references. —

For proceedings when a successful candidate for governor or lieutenant governor or a campaign treasurer or deputy campaign treasurer of that candidate has been convicted of a violation of the state election campaign laws, see AS 15.13.380(i)(2) .

Notes to Decisions

Quoted in

Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Collateral references. —

46 Am.Jur.2d, Judges, §§ 16 to 19; 63C Am.Jur.2d, Public Officers and Employees, §§ 210 to 214.

48A C.J.S., Judges, §§ 100 to 110, 113; 67 C.J.S., Officers and Public Employees, §§ 212 to 214; 81A C.J.S., States, §§ 184 to 188.

Abuse or misuse of contempt power as ground for removal or discipline of judge. 76 ALR4th 982.

Section 21. Suits Against the State.

The legislature shall establish procedures for suits against the State.

Cross references. —

For actions against the state, see AS 09.50.250 et seq.

Notes to Decisions

The State of Alaska cannot be sued without its consent being expressly granted by legislative authority. Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970).

Constitutionality of legislation. —

Although plaintiff, a state-employed seaman, challenged the validity of AS 09.50.250 (5), which, as amended, rescinded Alaska’s waiver of sovereign immunity from suits under the federal Jones Act, the statute did not violate the Alaska Constitution’s waiver of sovereign immunity. Glover v. State, 175 P.3d 1240 (Alaska 2008).

Although a counterclaim may be asserted against a sovereign by way of setoff or recoupment to defeat or diminish the sovereign’s recovery, no affirmative relief may be given against the sovereign in the absence of consent. Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970).

Legislative action. —

Because Alaska Const. art. II, § 21, contains a directive for legislative action, it is incapable of being self-executing. Glover v. State, 175 P.3d 1240 (Alaska 2008).

No consent to suits in federal court. —

The legislature has not expressly or otherwise consented to suits against the state in federal court. Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970).

Terms and conditions upon which state may be sued. —

The constitution of the State of Alaska grants to the legislature the sole and exclusive power to enact laws establishing the terms and conditions upon which the state may be sued. Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970).

Plaintiff municipality did not have a cognizable claim that certain challenged state legislation constituted an unlawful impairment of its contract with the state under U.S. Const. art. I, § 10, cl. 1; the municipality could sue the state in state court for breach of its contract, the contract was not impaired under federal constitutional law, and sovereign immunity for contract claims against the state is expressly waived in the Alaska Constitution. Municipality of Anchorage v. Alaska, 393 F. Supp. 2d 958 (D. Alaska 2005).

AS 09.50.250 promulgated pursuant to this section. —

Alaska Statutes 09.50.250, which gives the right to sue the state conditioned upon compliance with certain provisions dealing with administrative remedies, was promulgated pursuant to this section. State v. Zia, Inc., 556 P.2d 1257 (Alaska 1976).

By enacting AS 09.50.250 , the legislature exercised its authority, pursuant to this section, to waive the state’s immunity to suits asserting contract claims against it. State v. Haley, 687 P.2d 305 (Alaska 1984).

Immunity for tort claims. —

AS 09.50.250 encompasses state constitutional torts. A claim for a state constitutional violation arising out of an assault or battery is therefore barred by the State’s immunity. State v. Heisey, 271 P.3d 1082 (Alaska 2012).

This section does not apply to municipalities; therefore, AS 09.65.070(d)(1) , which confers immunity to municipalities for liability arising from safety inspections of private property, is constitutional. Wilson v. Municipality of Anchorage, 669 P.2d 569 (Alaska 1983).

Waiver of immunity. —

A waiver of immunity from suit in a court of the state does not constitute a waiver of immunity of a suit brought by the state in a federal court. Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970).

Under the laws of the state, the attorney general is without authority to waive the state’s immunity under the 11th amendment of the United States Constitution.Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970).

The Alaska constitution waives absolute sovereign immunity but retains a restricted version of immunity under Alaska Const. art. II, § 21, and the supreme court has consistently stated that prejudgment interest may not be assessed against the state unless specifically authorized by legislation; applicability of sovereign immunity presents a question of law that the supreme court reviews de novo. State v. Alaska State Emples. Ass'n, 190 P.3d 720 (Alaska 2008).

In dismissing a company’s fraudulent conveyance and conspiracy claims against the state, the trial court erred in concluding that the state could not waive its sovereign immunity defense through its litigation conduct and in failing to apply the correct test for determining waiver of the state’s sovereign immunity. Sea Hawk Seafoods, Inc. v. State, 215 P.3d 333 (Alaska 2009).

Quoted in

Adams v. State, 555 P.2d 235 (Alaska 1976); Vest v. Schafer, 757 P.2d 588 (Alaska 1988); Blair v. State, — P.3d — (Alaska Dec. 2, 2020).

Editor’s notes. —

The new sections proposed by 1980 Legislative Resolve 5 (CSHJR 82 am) (legislative annulment of regulations), 1980 Legislative Resolve 25 (2d HCS SJR 2) (disqualification of legislators), 1983 Legislative Resolve 15 (SCS HJR 5(JUD)) (legislative annulment of regulations), and 1986 Legislative Resolve 60 (HCS SJR 40(JUD) am H) (legislative annulment of regulations) were rejected by voters.

Article III The Executive

Section 1. Executive Power.

The executive power of the State is vested in the governor.

Cross references. —

See notes to Alaska Const., art. VI, §§ 2, 3.

Administrative Code. —

For governor, see 6 AAC, part 8.

Opinions of attorney general. —

Vesting authority in the legislative Budget and Audit Committee to approve transfers between appropriation items violates the separation of powers doctrine and is an improper delegation of a legislative function to an interim committee. July 22, 1976 Op. Att’y Gen.

Section 13(3) of the 1976 budget bill, which authorized the Budget and Audit Committee to supervise the governor’s execution of the budget act, specifically over that portion of it which permitted him to transfer appropriation items constituted an encroachment on executive power and offended the Alaska Constitution. July 22, 1976 Op. Att’y Gen.

Notes to Decisions

Recognition of separation of powers doctrine. —

Although the Alaska Constitution does not expressly address itself to the doctrine of separation of powers, the state constitution is divided into a number of separate articles, and since this article concerns the executive branch, it can fairly be implied that this state does recognize the separation of powers doctrine. Public Defender Agency v. Superior Court, Third Judicial Dist., 534 P.2d 947 (Alaska 1975); Rust v. State, 582 P.2d 134 (Alaska 1978).

Separation of powers doctrine requires that the blending of governmental powers will not be inferred in the absence of an express constitutional provision. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Courts may not interfere with executive discretion. —

When an act is committed to executive discretion, the exercise of that discretion within constitutional bounds is not subject to the control or review of the courts. To interfere with that discretion would be a violation of the doctrine of separation of powers. Public Defender Agency v. Superior Court, Third Judicial Dist., 534 P.2d 947 (Alaska 1975); Rust v. State, 582 P.2d 134 (Alaska 1978).

Decisions relating to prosecution of judicial cases. —

The executive branch has exclusive authority to decide whether and how to prosecute a case. The Attorney General cannot be controlled in either his decision of whether to proceed, or in his disposition of the proceeding. State v. Dist. Court, 53 P.3d 629 (Alaska Ct. App. 2002).

Charging decisions are committed to the discretion of the executive branch. As long as these decisions are exercised within constitutional bounds, they are not subject to judicial control or review. State v. Dist. Court, 53 P.3d 629 (Alaska Ct. App. 2002).

Appointment of executive officers is an executive function; without such a power, the responsibility for executing executive duties would be diffused and the goal of separation of branches of government, avoiding too great a concentration of power in one branch, would be defeated. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

In view of the responsibilities imposed by § 16 of this article and the authority granted by this section, the governor is necessarily clothed with the power to appoint subordinate executive officers to aid him in carrying out the laws of Alaska. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Confirmation is part of executive power of appointment. —

Confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Limitation on legislative checks on governor’s power to appoint. —

See note to § 25 of this article.

Section 1, ch. 82, SLA 1975, is unconstitutional. —

Section 1, ch. 82, SLA 1975, which amends AS 39.05.020 and purports to authorize legislative “meddling” in the exercise of an executive power, i.e., the appointment of executive officials, is unconstitutional because it is violative of separation of powers requirements. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Appointment of district court judges. —

There is no constitutional power residing in the executive to designate the particular location where a district court will serve. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983). For statutory power of appointment, see AS 22.15.170(a) .

Delegation of power over appropriations. —

Former AS 37.07.080(g)(2) was unconstitutional for two reasons: first, because it delegated power over appropriations, a power which can only be exercised by the legislature in accord with the procedures mandated by Alaska Const., art. II; second, because the statute lacked standards to guide the exercise of administrative discretion. In either case, the statute violated the principle of separation of powers. State v. Fairbanks N. Star Borough, 736 P.2d 1140 (Alaska 1987).

Tort immunity. —

The governor was entitled to absolute immunity for alleged wrongful interference torts arising out of his order that a corporation’s applications for offshore prospecting permits be rejected, but was only entitled to qualified immunity for his allegedly defamatory statements regarding the corporation. Aspen Exploration Corp. v. Sheffield, 739 P.2d 150 (Alaska 1987).

Cited in

Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988); Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

Collateral references. —

38 Am.Jur.2d, Governor, § 1 et seq.

Section 2. Governor: Qualifications.

The governor shall be at least thirty years of age and a qualified voter of the State. He shall have been a resident of Alaska at least seven years immediately preceding his filing for office, and he shall have been a citizen of the United States for at least seven years.

Opinions of attorney general. —

There is no authority in the constitution for the legislature to change the qualifications for holding the office of governor; hence, a statute declaring a candidate defeated in the primary election ineligible to run in the general election is unconstitutional as it provides a change in the qualifications required for holding “constitutionally” created public offices. 1963 Alas. Op. Att'y Gen. No. 6.

Notes to Decisions

Quoted in

O'Callaghan v. State, 826 P.2d 1132 (Alaska 1992).

Stated in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Cited in

Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Collateral references. —

63C Am.Jur.2d, Public Officers and Employees, §§ 18, 48 to 56, 68 to 82.

81A C.J.S., States, §§ 147, 148.

Section 3. Election.

The governor shall be chosen by the qualified voters of the State at a general election. The candidate receiving the greatest number of votes shall be governor.

Collateral references. —

26 Am.Jur.2d, Elections, § 358 et seq; 38 Am.Jur.2d, Governor, § 2.

29 C.J.S., Elections, §§ 222 et seq.; 81A C.J.S., States, §§ 147, 148.

Section 4. Term of Office.

The term of office of the governor is four years, beginning at noon on the first Monday in December following his election and ending at noon on the first Monday in December four years later.

Notes to Decisions

“Term”. —

With the exception of Alaska Const., art. IV, §§ 4 and 13, wherever “term” or “service at the pleasure of ” appears in the constitutional text originally adopted, the reference is to a period of service for a particular office. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Collateral references. —

38 Am.Jur.2d, Governor, § 2. 63C Am.Jur.2d, Public Officers and Employees, § 137 et seq.

Section 5. Limit on Tenure.

No person who has been elected governor for two full successive terms shall be again eligible to hold that office until one full term has intervened.

Collateral references. —

38 Am.Jur.2d, Governor, § 2. 63C Am.Jur.2d, Public Officers and Employees, §§ 144 to 150.

Construction and effect of constitutional or statutory provision disqualifying one for public office because of previous tenure of office. 59 ALR2d 716.

Section 6. Dual Office Holding.

The governor shall not hold any other office or position of profit under the United States, the State, or its political subdivisions.

Opinions of attorney general. —

Neither a legislator nor the governor may sit as a regent of the University of Alaska while holding office. December 27, 1976 Op. Att’y Gen.

Notes to Decisions

Meaning of phrase “position of profit”. —

See Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

And its intent. —

The term “position of profit” was intended to prohibit all other salaried non-temporary employment under the United States or the State of Alaska. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Applied in

Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Section 7. Lieutenant Governor — Duties.

There shall be a lieutenant governor. He shall have the same qualifications as the governor and serve for the same term. He shall perform such duties as may be prescribed by law and as may be delegated to him by the governor.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 1970), substituted “lieutenant governor” for “secretary of state” in the first sentence.

Opinions of attorney general. —

There is no authority in the constitution for the legislature to change the qualifications for holding the office of secretary of state [now lieutenant governor]; hence, a statute declaring a candidate defeated in the primary election ineligible to run in the general election is unconstitutional as it provides a change in the qualifications required for holding “constitutionally” created public offices. 1963 Alas. Op. Att'y Gen. No. 6.

Notes to Decisions

“Term”. —

With the exception of Alaska Const., art. IV, §§ 4 and 13, wherever “term” or “service at the pleasure of ” appears in the constitutional text originally adopted, the reference is to a period of service for a particular office. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Quoted in

O'Callaghan v. State, 826 P.2d 1132 (Alaska 1992).

Stated in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Cited in

Robart v. State, 82 P.3d 787 (Alaska Ct. App. 2004).

Collateral references. —

63C Am.Jur.2d, Public Officers and Employees, §§ 15, 18, 45, 137, 139 to 141; 72 Am.Jur.2d, States, Territories and Dependencies, § 65.

67 C.J.S., Officers and Public Employees, §§ 8, 9, 18; 81A C.J.S., States, §§ 145, 146, 158 to 161, 171 to 174, 243.

Removal of public officers for misconduct during previous term. 42 ALR3d 691.

Construction and application, under state law, of doctrine of “executive privilege”. 10 ALR4th 355.

Section 8. Election.

The lieutenant governor shall be nominated in the manner provided by law for nominating candidates for other elective offices. In the general election the votes cast for a candidate for governor shall be considered as cast also for the candidate for lieutenant governor running jointly with him. The candidate whose name appears on the ballot jointly with that of the successful candidate for governor shall be elected lieutenant governor.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state” in the first, second and third sentences.

Section 9. Acting Governor.

In case of the temporary absence of the governor from office, the lieutenant governor shall serve as acting governor.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state.”

Section 10. Succession: Failure to Qualify.

If the governor-elect dies, resigns, or is disqualified, the lieutenant governor elected with him shall succeed to the office of governor for the full term. If the governor-elect fails to assume office for any other reason, the lieutenant governor elected with him shall serve as acting governor, and shall succeed to the office if the governor-elect does not assume his office within six months of the beginning of the term.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state” in the first and second sentences.

Collateral references. —

38 Am.Jur.2d, Governor, §§ 11 to 13.

81A C.J.S., States, §§ 169 to 174.

Section 11. Vacancy.

In case of a vacancy in the office of governor for any reason, the lieutenant governor shall succeed to the office for the remainder of the term.

Cross references. —

For succession in office, see AS 44.19.042 ; for special election in case of second vacancy in office of governor, see AS 44.19.044 ; for simultaneous vacancies, see AS 44.19.046 .

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state.”

Collateral references. —

38 Am.Jur.2d, Governor, §§ 11 to 13.

81A C.J.S., States, §§ 169 to 174.

Section 12. Absence.

Whenever for a period of six months, a governor has been continuously absent from office or has been unable to discharge the duties of his office by reason of mental or physical disability, the office shall be deemed vacant. The procedure for determining absence and disability shall be prescribed by law.

Cross references. —

For succession in office, see AS 44.19.042 ; for special election in case of second vacancy in office of governor, see AS 44.19.044 ; for simultaneous vacancies, see AS 44.19.046 .

Collateral references. —

38 Am.Jur.2d, Governor, §§ 12, 13.

81A C.J.S., States, §§ 169 to 174.

Section 13. Further Succession.

Provision shall be made by law for succession to the office of governor and for an acting governor in the event that the lieutenant governor is unable to succeed to the office or act as governor. No election of a lieutenant governor shall be held except at the time of electing a governor.

Cross references. —

For succession in office, see AS 44.19.042 ; for special election in case of second vacancy in office of governor, see AS 44.19.044 ; for simultaneous vacancies, see AS 44.19.046 .

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state” in the first and second sentences.

Notes to Decisions

Cited in

Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Section 14. Title and Authority.

When the lieutenant governor succeeds to the office of governor, he shall have the title, powers, duties and emoluments of that office.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state.”

Notes to Decisions

Cited in

Malone v. Meekins, 650 P.2d 351 (Alaska 1982).

Section 15. Compensation.

The compensation of the governor and the lieutenant governor shall be prescribed by law and shall not be diminished during their term of office, unless by general law applying to all salaried officers of the State.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state.”

Notes to Decisions

Quoted in

State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

Collateral references. —

38 Am.Jur.2d, Governor, § 3; 63C Am.Jur.2d, Public Officers and Employees, §§ 258 to 290.

67 C.J.S., Officers and Public Employees, §§ 270 to 310; 81A C.J.S., States, §§ 196 to 223.

Section 16. Governor’s Authority.

The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the State, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right by any officer, department, or agency of the State or any of its political subdivisions. This authority shall not be construed to authorize any action or proceeding against the legislature.

Notes to Decisions

Extent of authority to sue. —

Although this section authorizes the governor to sue in the name of the state, it confers no express power to sue in any narrower capacity. Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

Legislative council. —

Where neither the original nor the amended complaint gave any indication that the governor named the legislative council as a defendant in its limited capacity as a service agency, and where the complaints asserted no particular service-related acts or functions as a basis for proceeding against the council or its individual legislator-members, the action came within the originally intended scope of the prohibition of this section. Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

By directing against the legislature’s interim alter ego an action questioning the propriety of a purely legislative act, the governor effectively sought to hold the legislature itself “answerable” to him for its interpretations and handling of matters of law, and the substance of that suit infringed upon the legislature’s constitutional domain in precisely the manner that the drafters intended to prohibit. Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

Mootness doctrine. —

Because of the importance and unique nature of the protection embodied in this section, the question of whether the section forbade the filing of suit by the governor against the legislative council merited an exception to the mootness doctrine. Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

Matter of public importance. —

Where a suit tests the basic constitutional structure of the state’s tripartite system of government, it necessarily involves a matter of general public importance that transcends the executive branch’s parochial interests and implicates interests common to all state citizens. Legislative Council v. Knowles, 988 P.2d 604 (Alaska 1999).

Appointment of executive officers is an executive function; for without such a power, the responsibility for executing executive duties would be diffused and the goal of separation of branches of government, avoiding too great a concentration of power in one branch, would be defeated. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

In view of the responsibilities imposed by this section and the authority granted by § 1 of this article, the governor is necessarily clothed with the power to appoint subordinate executive officers to aid him in carrying out the laws of Alaska. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Enforcement of judgment conferring benefits to same-sex partners of state employees. —

With respect to regulations that conferred medical benefits and retirement system benefits on same-sex partners of state employees, an organization had the right to have a judgment ordering the state to confer such benefits enforced, and the executive branch had the constitutional authority, pursuant to this section, to enforce the judgment. An amicus request by the legislature seeking a stay that the organization opposed and that the state had not formally sought or claimed to be needed would be a denial of due process and an encroachment on the executive branch’s constitutional powers of enforcement. State v. Alaska Civ. Liberties Union, 159 P.3d 513 (Alaska 2006).

Standing to sue in land-exchange controversy. —

While the governor and the attorney general are generally charged with protecting the public interest, their position in a controversy involving legislation authorizing a three-way exchange of land between the State of Alaska, the United States government, and a regional corporation of Alaska natives was clearly adverse to that represented by plaintiff taxpayers, and the taxpayers were held to have standing to sue. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Applied in

Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

Quoted in

Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967).

Stated in

Lebert v. Hammond, 661 P.2d 635 (Alaska 1983).

Cited in

Robart v. State, 82 P.3d 787 (Alaska Ct. App. 2004).

Collateral references. —

38 Am.Jur.2d, Governor, §§ 4-10.

Section 17. Convening Legislature.

Whenever the governor considers it in the public interest, he may convene the legislature, either house, or the two houses in joint session.

Notes to Decisions

Executive power. —

Although each house of the legislature may conduct such inquiry as it thinks desirable into the suitability of gubernatorial appointees whose confirmation by the constitution is required, this power does not serve as a limitation on the power of the governor to call a joint session; the plain text of the constitution grants convening power to the executive. Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Legislators’ absolute immunity from federal civil rights suits. —

State legislators enjoy absolute immunity from suits for damages by individuals alleging violations of the federal civil rights statute, 42 U.S.C. § 1983, when their conduct occurs in a field where legislators traditionally have the power to act. The action of the senate president in ordering the attendance of absent house members lies within the sphere of legitimate legislative activity and, accordingly, he is entitled to absolute immunity from civil suit for this action. Shultz v. Sundberg, 577 F. Supp. 1491 (D. Alaska 1984), aff'd, 759 F.2d 714 (9th Cir. Alaska 1985).

Applied in

Kerttula v. Abood, 686 P.2d 1197 (Alaska 1984).

Cited in

Schultz v. Sundberg, 759 F.2d 714 (9th Cir. Alaska 1985).

Collateral references. —

16 C.J.S., Constitutional Law, §§ 218 to 301.

Section 18. Messages to Legislature.

The governor shall, at the beginning of each session, and may at other times, give the legislature information concerning the affairs of the State and recommend the measures he considers necessary.

Section 19. Military Authority.

The governor is commander-in-chief of the armed forces of the State. He may call out these forces to execute the laws, suppress or prevent insurrection or lawless violence, or repel invasion. The governor, as provided by law, shall appoint all general and flag officers of the armed forces of the State, subject to confirmation by a majority of the members of the legislature in joint session. He shall appoint and commission all other officers.

Notes to Decisions

Use of National Guard to execute search warrant. —

Under this section, the governor is authorized to use the National Guard to execute the laws, and there is no provision of Chapter 5 of Title 26 of the Alaska Statutes that prohibited the use of National Guard soldiers to execute search warrants. Wallace v. State, 933 P.2d 1157 (Alaska Ct. App. 1997), cert. denied, 528 U.S. 987, 120 S. Ct. 447, 145 L. Ed. 2d 364 (U.S. 1999).

Cited in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Collateral references. —

53 Am.Jur.2d, Military and Civil Defense, §§ 27, 32.

6 C.J.S., Armed Services, § 341 et seq.

Section 20. Martial Law.

The governor may proclaim martial law when the public safety requires it in case of rebellion or actual or imminent invasion. Martial law shall not continue for longer than twenty days without the approval of a majority of the members of the legislature in joint session.

Notes to Decisions

Cited in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Section 21. Executive Clemency.

Subject to procedure prescribed by law, the governor may grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures. This power shall not extend to impeachment. A parole system shall be provided by law.

Cross references. —

For statutory provisions related to remission of sentences, executive pardons and clemency, see AS 33.20. For statutory provisions related to parole, see AS 33.16.

Notes to Decisions

Legislation making those presumptively sentenced ineligible for parole does not violate this section of the state constitution. Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986).

Special parole conditions. —

Imposition of special parole conditions was consistent with the grant of authority under this provision and did not violate the doctrine of separation of powers. James v. State, 244 P.3d 542 (Alaska Ct. App. 2011).

Authority to establish clemency criteria. —

Alaska Department of Corrections did not act outside its authority by establishing clemency eligibility criteria because the governor had decided to refer all applications to the parole board and the board had established clemency qualification criteria; that authority was inherent in the governor’s executive clemency power. Lewis v. Dep't of Corr., 139 P.3d 1266 (Alaska 2006).

Noncapital defendants do not have a liberty interest in traditional state executive clemency, to which no particular claimant is entitled as a matter of state law. DA's Office v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (U.S. 2009).

Quoted in

State v. Rice, 626 P.2d 104 (Alaska 1981).

Collateral references. —

59 Am.Jur.2d, Pardon and Parole, §§ 15, 17, 22 to 27.

67A C.J.S., Pardon and Parole, §§ 5 to 23.

Prejudicial effect of instruction of court as to possibility of pardon or parole. 12 ALR3d 832.

Pardon as restoring public office or license or eligibility therefor. 58 ALR3d 1191.

State pardon as affecting “convicted” status of one accused of violations of Gun Control Act of 1968 (18 U.S.C. § 921 et seq.). 44 ALR Fed. 692.

Section 22. Executive Branch.

All executive and administrative offices, departments, and agencies of the state government and their respective functions, powers, and duties shall be allocated by law among and within not more than twenty principal departments, so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial, and temporary agencies may be established by law and need not be allocated within a principal department.

Cross references. —

For definition of phrase “by law,” see Alaska Const., art. XII, § 11.

Opinions of attorney general. —

This section requires only that governmental functions be grouped among principal departments according to major purposes as far as practicable and could not be read to prohibit the Department of Fish and Game from performing an enforcement function complementary to that of the Department of Public Safety. March 29, 1977 Op. Att’y Gen.

Notes to Decisions

Judicial definition of functions of state departments. —

The constitution vests no power in the judiciary to define the specific functions of the principal departments in the state government or the units of the executive branch, and in the absence of express authorization or an overriding constitutional imperative, the judiciary may not bequeath such a power to itself. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Superior court cannot order home study by department of health and social services. —

The superior court does not have the authority to order the Alaska Department of Health and Social Services, division of social services, against its will, to conduct a home study in a private custody dispute. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Since in other statutes the legislature has seen fit to exercise its authority under this section over the Department of Health and Social Services expressly, an implied exercise of that power will not easily be found in language that is directed only to the judiciary and uses no term even vaguely indicating an intent to make the department’s resources available to the courts. Thus, the vague directive of AS 09.65.130 that in a private custody dispute the court may order that “services be provided for the protection of the child” does not empower a court to command the aid of the department in a private custody dispute. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Exercise of authority and control by regulatory agencies. —

Regulatory agencies that are not under the supervision of the executive would obviously have the function of exercising authority and control in places where the legislature has decided not to exercise all the authority and control itself, and this would be a delegation of legislative power provided for by the constitution. Boehl v. Sabre Jet Room, 349 P.2d 585 (Alaska 1960).

Alaska State Development Corporation. —

Former AS 44.59.010 et seq., creating the Alaska State Development Corporation, did not violate this section. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962).

The Alaska State Mortgage Association (AS 44.83.010 et seq.) is not a regulatory, quasi-judicial or temporary agency of the state within the exceptions provided under this section. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Former Alaska State-Operated School System fell within the executive branch because its sole function, as it was created by the legislature, was to execute or put into operation and effect in the unorganized borough the laws relating to public education enacted by the legislature. Alaska State-Operated Sch. Sys. v. Mueller, 536 P.2d 99 (Alaska 1975). For present provisions as to education in the unorganized borough, see AS 14.08.011 14.08.161 .

And it was not a regulatory, quasi-judicial or temporary agency. Alaska State-Operated Sch. Sys. v. Mueller, 536 P.2d 99 (Alaska 1975).

Status of Alaska State-Operated School System. —

See Alaska State-Operated Sch. Sys. v. Mueller, 536 P.2d 99 (Alaska 1975).

The University of Alaska could not be allocated among the principal state departments now identified under AS 44.17.005 . University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

The city of Anchorage is not an office, department, or agency of the executive branch of the state government under this section which deals with the executive power of the state. It is a home rule city with maximum local self-government, organized under Alaska Const., art. X relating to local government. Wellmix, Inc. v. Anchorage, 471 P.2d 408 (Alaska 1970).

Appointment of special prosecutor. —

Neither the Alaska Constitution, Article III, section 22, nor the legislation permitting the establishment of the Department of Law (AS 44.17.010 , 44.17.040 ) limits or deprives the attorney general of the power to appoint a special prosecutor when, in the wide discretion granted, the attorney general believes such an appointment to be in the public interest; the proper appointment of a special prosecutor in circumstances where the attorney general believes he and the Department of Law are disqualified by a conflict of interest is within the attorney general’s discretionary control over the legal business of the state. State v. Breeze, 873 P.2d 627 (Alaska Ct. App. 1994).

Creation of quasi-judicial agency. —

Creation of Alaska Workers’ Compensation Appeals Commission was quasi-judicial, and it was properly established; the legislature acted within its constitutional authority in creating the Appeals Commission and, with limiting construction of AS 23.30.007 , the authority of the Appeals Commission did not encroach on the judicial branch. Alaska Pub. Interest Research Group v. State, 167 P.3d 27 (Alaska 2007).

Quoted in

Alaska State Hous. Auth. v. Dixon, 496 P.2d 649 (Alaska 1972); Warren v. Boucher, 543 P.2d 731 (Alaska 1975); Alaska Commercial Fishing & Agric. Bank v. O/S Alaska Coast, 715 P.2d 707 (Alaska 1986).

Forrer v. State, 471 P.3d 569 (Alaska 2020).

Collateral references. —

63C Am.Jur.2d, Public Officers and Employees, §§ 15, 18, 45.

67 C.J.S., Officers and Public Employees, §§ 8, 9, 18, 86 to 92; 81A C.J.S., States, §§ 158 to 160, 163 to 165, 224 to 253.

Removal of public officers for misconduct during previous term. 42 ALR3d 691.

Construction and application, under state law, of doctrine of “executive privilege”. 10 ALR4th 355.

Section 23. Reorganization.

The governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders. The legislature shall have sixty days of a regular session, or a full session if of shorter duration, to disapprove these executive orders. Unless disapproved by resolution concurred in by a majority of the members in joint session, these orders become effective at a date thereafter to be designated by the governor.

Notes to Decisions

Judicial definition of functions of state departments. —

The constitution vests no power in the judiciary to define the specific functions of the principal departments in the state government or the units of the executive branch, and in the absence of express authorization or an overriding constitutional imperative, the judiciary may not bequeath such a power to itself. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Superior court cannot order home study by department of health and social services. —

The superior court does not have the authority to order the Alaska department of health and social services, division of social services, against its will, to conduct a home-study in a private custody dispute. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

The legislative veto power granted in this section and Alaska Const., art. X, § 12, is the power to change statutes, not rule-making power, which is the power to interpret and implement statutes. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

The creation of the Alaska Mortgage Adjustment Agency was not a change in the organization of the executive branch of government requiring the force of law. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Creation of quasi-judicial agency. —

Creation of Alaska Workers’ Compensation Appeals Commission was quasi-judicial, and it was properly established; the legislature acted within its constitutional authority in creating the commission and, with limiting construction of AS 23.30.007 , the authority of the commission did not encroach on the judicial branch. Alaska Pub. Interest Research Group v. State, 167 P.3d 27 (Alaska 2007).

Cited in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Section 24. Supervision.

Each principal department shall be under the supervision of the governor.

Administrative Code. —

For governor, see 6 AAC, part 8.

Notes to Decisions

Applied in

State v. Fairbanks N. Star Borough, 736 P.2d 1140 (Alaska 1987).

Cited in

Aspen Exploration Corp. v. Sheffield, 739 P.2d 150 (Alaska 1987).

Section 25. Department Heads.

The head of each principal department shall be a single executive unless otherwise provided by law. He shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and shall serve at the pleasure of the governor, except as otherwise provided in this article with respect to the secretary of state. The heads of all principal departments shall be citizens of the United States.

Revisor’s notes. —

Senate Joint Resolution No. 2, “changing the name of the secretary of state to lieutenant governor” in 16 sections of the Alaska Constitution, effective October 10, 1970, inadvertently omitted express amendment of this section.

Opinions of attorney general. —

Neither custom nor law requires the governor to submit the names of the heads of principal departments to the legislature for confirmation when they carry over in office following a gubernatorial election. January 25, 1979 Op. Att’y Gen.

Notes to Decisions

Clear nature of provisions. —

The provisions of this section and § 26 of this article are clear and unambiguous. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Purpose of section. —

This section explicitly empowers the governor to appoint and dismiss the head of each principal department. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

This section subjects executive appointments to confirmation by a majority of the members of the legislature in joint session. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Confirmation is part of executive power of appointment. —

Confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Limitation on legislative checks on governor’s power to appoint. —

The lack of ambiguity in this section and § 26 of this article mandate that this court interpret these express provisions as embodying not only the maximum parameters of the delegation of the executive appointive authority through the legislative confirmation function but, further, that they delineate the full extent of the constitution’s express grant to the legislative branch of checks on the governor’s power to appoint subordinate executive officers. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

This section and § 26 of this article mark the full reach of the delegated, or shared, appointive function to Alaska’s legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

The quorum for a joint session of the legislature convened under Article III, §§ 25 and 26 of the Alaska Constitution is a majority of the members of the legislature, or 31 legislators from either house of the legislature. Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Section 1, ch. 82, SLA 1975, is unconstitutional. —

Section 1, ch. 82, SLA 1975, which amends AS 39.05.020 and purports to authorize legislative “meddling” in the exercise of an executive power, i.e., the appointment of executive officials, is unconstitutional because it is violative of separation of powers requirements. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Applied in

Larson v. State, 564 P.2d 365 (Alaska 1977); Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979); Kerttula v. Abood, 686 P.2d 1197 (Alaska 1984).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Section 26. Boards and Commissions.

When a board or commission is at the head of a principal department or a regulatory or quasi-judicial agency, its members shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and may be removed as provided by law. They shall be citizens of the United States. The board or commission may appoint a principal executive officer when authorized by law, but the appointment shall be subject to the approval of the governor.

Editor’s notes. —

The amendments proposed by 1980 Legislative Resolve 43 (CSHJR 20 am) (appointment and confirmation of board members) and 2000 Legislative Resolve 54 (CCS SJR 34) (public corporations) were rejected by voters.

Notes to Decisions

Clear nature of provisions. —

The provisions of this section and § 25 of this article are clear and unambiguous. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Vesting of powers of appointment and confirmation. —

This section vests the power of appointment in the governor and the power to confirm in the legislature in joint session. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Removal is as provided by law. —

Removal of board or commission members appointed under this section is as provided by law and, therefore, not necessarily at the governor’s pleasure. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Confirmation is part of executive power of appointment. —

Confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Limitation on legislative checks on governor’s power to appoint. —

The lack of ambiguity in this section and § 25 of this article mandate that this court interpret these express provisions as embodying not only the maximum parameters of the delegation of the executive appointive authority through the legislative confirmation function but, further, that they delineate the full extent of the constitution’s express grant to the legislative branch of checks on the governor’s power to appoint subordinate executive officers. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

This section and § 25 of this article mark the full reach of the delegated, or shared, appointive function to Alaska’s legislative branch of government. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

The quorum for a joint session of the legislature convened under Article III, §§ 25 and 26 of the Alaska Constitution is a majority of the members of the legislature, or 31 legislators from either house of the legislature. Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Section 1, ch. 82, SLA 1975, is unconstitutional. —

Section 1, ch. 82, SLA 1975, which amends AS 39.05.020 and purports to authorize legislative “meddling” in the exercise of an executive power, i.e., the appointment of executive officials, is unconstitutional because it is violative of separation of powers requirements. Bradner v. Hammond, 553 P.2d 1 (Alaska 1976).

Appointment of members of Alaska State Mortgage Association. —

This section does not govern the appointment of members of the Alaska State Mortgage Association. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Applied in

State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); Kerttula v. Abood, 686 P.2d 1197 (Alaska 1984).

Cited in

Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); Kohlhaas v. State, 223 P.3d 105 (Alaska 2010); Forrer v. State, 471 P.3d 569 (Alaska 2020).

Collateral references. —

63C Am.Jur.2d, Public Officers and Employees, §§ 88, 89.

67 C.J.S., Officers and Public Employees, § 57; 81A C.J.S., States, § 163.

Section 27. Recess Appointments.

The governor may make appointments to fill vacancies occurring during a recess of the legislature, in offices requiring confirmation by the legislature. The duration of such appointments shall be prescribed by law.

Notes to Decisions

Duration of recess appointments. —

Recess appointments are of the same duration as all other appointments, and subject to legislative confirmation. Cook v. Botelho, 921 P.2d 1126 (Alaska 1996).

Collateral references. —

38 Am.Jur.2d Governor, § 7; 63C Am.Jur.2d, Public Officers and Employees, §§ 90, 104, 105, 169.

67 C.J.S., Officers and Public Employees, §§ 46, 47, 53; 81A C.J.S., States, §§ 163 to 165.

Article IV The Judiciary

Section 1. Judicial Power and Jurisdiction.

The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. The jurisdiction of courts shall be prescribed by law. The courts shall constitute a unified judicial system for operation and administration. Judicial districts shall be established by law.

Notes to Decisions

AS 22.05.010 delineates jurisdiction of supreme court. —

Pursuant to the grant of power under this section, the legislature, in AS 22.05.010 , delineated the jurisdiction of the supreme court of Alaska. State v. Browder, 486 P.2d 925 (Alaska 1971).

AS 22.05.010 clearly distinguishes between appeals and other forms of review. State v. Browder, 486 P.2d 925 (Alaska 1971).

Appellate jurisdiction may be exercised other than by appeal. —

AS 22.05.010 is a clear manifestation of the legislature’s intent that the supreme court would be able to exercise its final appellate jurisdiction other than by appeal. State v. Browder, 486 P.2d 925 (Alaska 1971).

State court jurisdiction over former federal patent land. —

The federal patent in the property’s chain of title did not take the property beyond the jurisdiction of the state court. After the issuance of a patent, property disputes are resolved in state court; the mere presence of a federal land patent in the chain of title does not give rise to federal jurisdiction. Pursche v. Borough, 371 P.3d 251 (Alaska 2016).

But other forms of review have no limitations placed on them. —

Appeals are specifically limited, whereas the other forms of review authorized under AS 22.05.010 , by virtue of the language “all . . . writs necessary . . . to the complete exercise of . . . [the supreme court’s] jurisdiction,” have no limitations placed on them. State v. Browder, 486 P.2d 925 (Alaska 1971).

The limitation placed upon the state’s right to appeal in a criminal case, found in AS 22.05.010 , was intended to apply only to instances where supreme court jurisdiction is sought to be invoked by appeal. State v. Browder, 486 P.2d 925 (Alaska 1971).

State not barred from invoking review in criminal matters. —

Alaska Const., art. IV, § 15, and underlying policies reflected in such section lend support to the conclusion that the state is not barred from invoking supreme court review jurisdiction in criminal matters. State v. Browder, 486 P.2d 925 (Alaska 1971).

Review of nonfinal orders or decisions in criminal cases. —

The state can invoke supreme court discretionary review jurisdiction in criminal cases where the matter sought to be reviewed involves a nonfinal order or decision of the superior court. State v. Browder, 486 P.2d 925 (Alaska 1971).

If AS 22.05.010 is construed to prohibit the supreme court’s review of any actions challenged by the state, then a conflict would arise between Alaska Const., art. IV, § 2, and AS 22.05.010 . Acceptance of this construction in the context of the case at bar would mean that the superior court, rather than the supreme court, is the highest court of the state possessed of final appellate jurisdiction. The supreme court would then be limited to reviewing only those cases where a conviction had been obtained and a defendant had appealed. State v. Browder, 486 P.2d 925 (Alaska 1971).

Executive branch authority over prosecution decisions. —

The executive branch has exclusive authority to decide whether and how to prosecute a case. The Attorney General cannot be controlled in either his decision of whether to proceed, or in his disposition of the proceeding. State v. Dist. Court, 53 P.3d 629 (Alaska Ct. App. 2002).

Charging decisions are committed to the discretion of the executive branch. As long as these decisions are exercised within constitutional bounds, they are not subject to judicial control or review. State v. Dist. Court, 53 P.3d 629 (Alaska Ct. App. 2002).

Duty of supreme court to reconcile challenged legislation with constitution. —

The supreme court is admittedly under a duty to reconcile, whenever possible, challenged legislation with the constitution by rendering a construction that would harmonize the statutory language with specific constitutional provisions. However, in fulfilling that duty, the extent to which the express language of the provision can be altered and departed from and the extent to which the infirmities can be rectified by the use of implied terms is limited by the constitutionally decreed separation of powers which prohibits this court from enacting legislation or redrafting defective statutes. State v. Campbell, 536 P.2d 105 (Alaska 1975), overruled, Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

The supreme court’s rule-making authority under this section is inherent in the judicial power vested in it, as the supreme court of the state. Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991).

Lieutenant governor properly denied certification of an initiative that would have set maximum allowable levels of attorney’s fees in personal injury cases, where the initiative constituted an attempt to prescribe a rule of court in violation of Article XI, § 7 of the Alaska Constitution and would have altered or supplemented existing court rules regulating contingent fees. Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991).

Declaration of appellate rule supremacy over procedural statutes is an expression of the judicial power distributed to the courts by this section and § 15 of this article. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Promulgation of Civil Rule 90.3 (child support awards) did not violate the separation of powers doctrine. Coghill v. Coghill, 836 P.2d 921 (Alaska 1992).

The right to jury review of municipal tax assessments does not encroach upon the judicial power reserved to the courts by this section and § 15 of this article. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Trial courts may reduce or modify own sentences. —

The constitutional grant of judicial power encompasses the inherent judicial power of Alaska’s trial courts to reduce or modify their own sentences. Thomas v. State, 566 P.2d 630 (Alaska 1977).

Thus, Criminal Rule 35(a) is not unconstitutional insofar as it purports to authorize a court to reduce a legal sentence. Thomas v. State, 566 P.2d 630 (Alaska 1977).

General judicial power not conferred on master of family court. —

It does not appear likely that general judicial power could be conferred on a master of the family court, even postulating an intention by the appointing authority to do so. In re G. M. B., 483 P.2d 1006 (Alaska 1971).

The district court is a creature of statute, and is not constitutionally created. Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

District court is “court not of record.” —

See Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

Jurisdiction over misdemeanor offenses. —

Court rejected defendant’s claim that the trial court had no authority to decide his case, which resulted in a conviction under AS 28.15.291(a)(1) , because the legislature expressly granted the trial court jurisdiction over misdemeanor offenses pursuant to this provision and AS 22.15.060(a)(1)(A) . Gladden v. State, 110 P.3d 1006 (Alaska Ct. App. 2005).

Superior Court jurisdiction to review Office of Tax Appeals decisions. —

Administratively dissolved corporation was properly assessed corporate income taxes under AS 43.05.010 because the Office of Tax Appeals and the superior court had subject matter jurisdiction, pursuant to this section, AS 43.05.405 , 43.05.435 , 22.10.020 , and 43.05.480 , to determine the taxability of corporations operating in the state; such corporation did not cease to exist where it maintained active bank accounts, entered into contracts, and leased vehicles after it had been dissolved by the State of Washington. Northwest Med. Imaging, Inc. v. Dep't of Revenue, 151 P.3d 434 (Alaska 2006).

Shortening terms of district judges. —

There is no provision in the Alaska Constitution similar to the provision of article III, § 1, of the United States Constitution that “Judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” Therefore, the argument by analogy with the federal provision that terms of judges of “constitutional courts” cannot be shortened by Congress is inapposite to establish that terms of Alaska district judges cannot be shortened by the legislature. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

Permanent intra-district transfer of district court judge. —

A permanent intra-district transfer of a district court judge by a judicial officer does not contravene the principle of separation of powers. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

There is no constitutional power residing in the executive to designate the particular location where a district court judge will serve. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

The citizenship requirement of former AS 08.08.130 did not have a rational connection with one’s fitness to practice law in Alaska. There were better tests than alienage to determine these matters. Accordingly, the statutory requirement of citizenship was not one accepted and established by the supreme court, and former AS 08.08.130 (a)(1) was an encroachment upon the prerogatives of the supreme court in establishing regulations for the practice of law in the State of Alaska. This statutory requirement was in violation of Alaska Const., art. IV, § 1, and was declared to be of no force and effect. In re Park, 484 P.2d 690 (Alaska 1971).

AS 12.55.125 12.55.175 are constitutional. —

The presumptive sentencing provisions contained in AS 12.55.125 12.55.175 are not an unconstitutional violation of the separation of powers doctrine or of this section as a legislative infringement on the power of the judiciary to sentence on the basis of the particular facts of the case and the nature of a particular offender because although the presumptive sentencing statutes do limit the discretion of a judge in imposing a sentence, they do not foreclose sentences of less than the presumptive sentence or the possibility of placing a person on probation. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Sentencing order violated separation of powers. —

Where the sentencing court issued a supplemental order barring the department of corrections from housing defendant in the same facility as another named inmate and the prosecutor stated that the State had no opposition to defendant’s request, the supplemental order was reversed because the order violated the separation of powers doctrine by invading the province of the department of corrections. State v. Combs, 64 P.3d 135 (Alaska Ct. App. 2003).

Federal patent. —

Argument that the federal patent took the property beyond the jurisdiction of the state court under this statute was rejected because, after the issuance of a patent, property disputes had to be resolved in state court. The mere presence of a federal land patent in the chain of title did not alone give rise to federal jurisdiction. Pursche v. Borough, 371 P.3d 251 (Alaska 2016).

Applied in

In re Houston, 378 P.2d 644 (Alaska 1963); In re Brewer, 506 P.2d 676 (Alaska 1973); L. A. M. v. State, 547 P.2d 827 (Alaska 1976); Continental Ins. Cos. v. Bayless & Roberts, 548 P.2d 398 (Alaska 1976); Bradner v. Hammond, 553 P.2d 1 (Alaska 1976); Larson v. State, 564 P.2d 365 (Alaska 1977); Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979); Oxereok v. State, 611 P.2d 913 (Alaska 1980); McCracken v. Corey, 612 P.2d 990 (Alaska 1980); Keyes v. Humana Hosp. Alaska, 750 P.2d 343 (Alaska 1988).

Quoted in

Theodore v. State, 407 P.2d 182 (Alaska 1965); Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967); City of Fairbanks v. Schrock, 457 P.2d 242 (Alaska 1969); Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969); Greater Anchorage Area Borough v. Anchorage, 504 P.2d 1027 (Alaska 1972); State v. Anchorage, 513 P.2d 1104 (Alaska 1973); State v. Lundgren Pac. Constr. Co., 603 P.2d 889 (Alaska 1979); Layne v. Niles, 632 P.2d 234 (Alaska 1981); Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995); Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Cited in

Metlakatla Indian Community v. Egan, 363 U.S. 555, 80 S. Ct. 1321, 4 L. Ed. 2d 1397 (U.S. 1960); City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973); Rust v. State, 582 P.2d 134 (Alaska 1978); Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989); Evans v. State, 56 P.3d 1046 (Alaska 2002); Sea Hawk Seafoods, Inc. v. State, 215 P.3d 333 (Alaska 2009); Davis v. State, 235 P.3d 1017 (Alaska Ct. App. 2010); Barry H. v. State, 404 P.3d 1231 (Alaska 2017); State, Dep't. of Health & Social Servs. v. Michelle P., 411 P.3d 576 (Alaska 2018).

Collateral references. —

16 Am. Jur. 2d Constitutional Law, §§ 260 — 283, 290; 20 Am. Jur. 2d, Courts, §§ 1 — 5, 10, 16, 17.

16 C.J.S., Constitutional Law, §§ 150 to 156, 302 et seq.; 21 C.J.S., Courts, §§ 91 to 96.

Municipal liability for personal injury or death under mob violence or antilynching statutes. 26 ALR3d 1142.

Section 2. Supreme Court.

  1. The supreme court shall be the highest court of the State, with final appellate jurisdiction. It shall consist of three justices, one of whom is chief justice. The number of justices may be increased by law upon the request of the supreme court.
  2. The chief justice shall be selected from among the justices of the supreme court by a majority vote of the justices. His term of office as chief justice is three years. A justice may serve more than one term as chief justice but he may not serve consecutive terms in that office.

Cross references. —

For statutory provisions changing the number of supreme court justices, see AS 22.05.020 .

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s FCCS SCS CSHJR 11 1970), added subsection (b).

Legislative history reports. —

For report on 1970 House Joint Resolution No. 11 (FCCS SCS CSHJR 11), see 1969 House Journal, p. 427; 1970 House Journal, p. 1388; 1970 Senate Journal, p. 1167.

Notes to Decisions

Subsection (a) implemented by AS 22.05.010(a) . —

Subsection (a), which provides, in part: “The supreme court shall be the highest court of the State, with final appellate jurisdiction” is implemented by the legislature in AS 22.05.010(a) . City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

AS 22.05.010 delineates jurisdiction of supreme court. —

Pursuant to the grant of power under Alaska Const., art. IV, § 1, the legislature in AS 22.05.010 delineated the jurisdiction of the supreme court of Alaska. State v. Browder, 486 P.2d 925 (Alaska 1971).

Final appellate jurisdiction is in supreme court. —

Once the appellate process is properly invoked, final appellate jurisdiction is in the supreme court; to hold otherwise would contravene the explicit constitutional provision of this section. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

State’s appeal of superior court order to supreme court. —

The limitations in AS 22.05.010 did not preclude the state from appealing an order of the superior court to the supreme court where the appellate process began at the time the appeal was taken from the judgment of the district court. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

AS 22.05.010 clearly distinguishes between appeals and other forms of review. State v. Browder, 486 P.2d 925 (Alaska 1971).

Appellate jurisdiction may be exercised other than by appeal. —

The proviso in AS 22.05.010 that “The supreme court may issue injunctions, writs of review, mandamus, certiorari, prohibition, habeas corpus, and all other writs necessary or proper to the complete exercise of its jurisdiction” is a clear manifestation of the legislature’s intent that the supreme court would be able to exercise its final appellate jurisdiction other than by appeal. State v. Browder, 486 P.2d 925 (Alaska 1971); City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

But other forms of review have no limitations placed on them. —

Appeals are specifically limited, whereas the other forms of review authorized under AS 22.05.010 , by virtue of the language “all . . . writs necessary . . . to the complete exercise of . . . [the supreme court’s] jurisdiction,” have no limitations placed on them. State v. Browder, 486 P.2d 925 (Alaska 1971).

The limitation placed upon the state’s right to appeal in a criminal case, found in AS 22.05.010 , was intended to apply only to instances where supreme court jurisdiction is sought to be invoked by appeal. State v. Browder, 486 P.2d 925 (Alaska 1971).

State not barred from invoking review in criminal matters. —

Alaska Const., art. IV, § 15, and underlying policies reflected in such section lend support to the conclusion that the state is not barred from invoking the review jurisdiction of the supreme court in criminal matters. State v. Browder, 486 P.2d 925 (Alaska 1971).

Review of nonfinal orders or decisions in criminal cases. —

The state can invoke supreme court discretionary review jurisdiction in criminal cases where the matter sought to be reviewed involves a nonfinal order or decision of the superior court. State v. Browder, 486 P.2d 925 (Alaska 1971).

If AS 22.05.010 is construed to prohibit the supreme court’s review of any actions challenged by the state, then a conflict would arise between this section and AS 22.05.010 . Acceptance of this construction in the context of the case at bar would mean that the superior court, rather than the supreme court, is the highest court of the state possessed of final appellate jurisdiction. The supreme court would then be limited to reviewing only those cases where a conviction had been obtained and a defendant had appealed. State v. Browder, 486 P.2d 925 (Alaska 1971).

The supreme court’s decision to treat a superior court order remanding a criminal proceeding to the district court as a nonfinal decision under former App. R. 5 does not affect its treatment of other criminal cases where the superior court enters a judgment of acquittal upon appeal of a criminal conviction from a district court. In the latter type of cases, the entry of acquittal is clearly a final judgment for purposes of appellate review jurisdiction. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Review of nonfinal orders in civil cases. —

In civil cases an order of the superior court issued in its appellate capacity which remands for further proceedings is not a final judgment for purposes of former App. R. 5, concerning judgments from which an appeal may be taken. However, a party to such a remand may properly invoke supreme court discretionary review jurisdiction where the requirements of former App. R. 23 and 24 (a), providing for review of nonappealable orders or decisions and limiting the granting of petition for review, respectively, are met. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

The exercise of discretionary review in civil cases will insure that the supreme court has the opportunity to exercise final review of questions decided by the superior court in remanding a case whenever it is necessary to provide immediate guidance on a particular matter. To preserve this constitutionally imposed review function, a party need not have a further absolute right to review prior to final disposition of the litigation after remand by the superior court. Following final judgment in the trial courts, a party always may appeal to the supreme court as a matter of right. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Review of criminal sentences is inherent in the power of the supreme court as the court of “final appellate jurisdiction” under this section. Wharton v. State, 590 P.2d 427 (Alaska 1979).

The supreme court had jurisdiction to review a criminal sentence of one year or less by virtue of former App. R. 21(a), which provided that “[a]t the time of imposition of any sentence of imprisonment of 45 days or more, the judge shall inform the defendant . . . [t]hat the sentence may be appealed to the supreme court on the ground that it is excessive.” Wharton v. State, 590 P.2d 427 (Alaska 1979).

Appeal from interim district court held properly taken to supreme court. —

See Theodore v. Zurich Gen. Accident & Liab. Ins. Co., 364 P.2d 51 (Alaska 1961), limited, National Indem. Co. v. Flesher, 469 P.2d 360 (Alaska 1970).

Applied in

Alaska Pub. Defender Agency, Juneau Office v. Superior Court of First Judicial Dist., 584 P.2d 1106 (Alaska 1978); Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Quoted in

Estate of Himsel v. State, 36 P.3d 35 (Alaska 2001).

Cited in

Metlakatla Indian Community v. Egan, 363 U.S. 555, 80 S. Ct. 1321, 4 L. Ed. 2d 1397 (U.S. 1960); Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981); Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Collateral references. —

20 Am.Jur.2d, Courts, § 9; 46 Am.Jur.2d, Judges, §§ 9, 10, 11.

21 C.J.S., Courts, § 121; 48A C.J.S., Judges, §§ 22 to 27.

Power of court to remove or suspend judge. 53 ALR3d 882.

Section 3. Superior Court.

The superior court shall be the trial court of general jurisdiction and shall consist of five judges. The number of judges may be changed by law.

Cross references. —

For statutory provisions changing the number of superior court judges, see AS 22.10.120 .

Notes to Decisions

Jurisdiction generally. —

The question of a court’s jurisdiction goes to its power to hear and adjudicate the subject matter in a given case. C.D.M. v. State, 627 P.2d 607 (Alaska 1981).

Where a court is one of general jurisdiction, such as a superior court, it has traditionally been regarded as having the power to hear all controversies which may be brought before a court within the legal bounds of rights or remedies, except insofar as has been expressly and unequivocally denied by the state’s constitution or statutes. C.D.M. v. State, 627 P.2d 607 (Alaska 1981).

Order for sterilization of mental incompetent. —

A superior court, as a court of general jurisdiction, does have, as part of its inherent parens patriae authority, the power to entertain and act upon a petition seeking an order authorizing the sterilization of a mental incompetent. C.D.M. v. State, 627 P.2d 607 (Alaska 1981).

Number of judges. —

Although specifications of how many judges there will be in each district do appear in the statutes, they are not mandated by express constitutional language. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Temporary assignments. —

Where each of the special orders assigning a district court judge is expressly limited in duration or subject matter and none purport to confer upon him all the benefits of regular superior court service, these assignments do not interfere with the legislature’s power to fix the number of superior court judges, nor do they prevent the governor and judicial council from filling a vacancy on the superior court, and they are temporary assignments within the constitutional authority of the chief justice. Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Applied in

Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Collateral references. —

20 Am.Jur.2d, Courts, § 10.

21 C.J.S., Courts, § 5 to 8.

Availability of writ of prohibition or similar remedy against acts of public prosecutor. 16 ALR4th 112.

Modern status of rule relating to jurisdiction of state court to try criminal defendant brought within jurisdiction illegally or as result of fraud or mistake. 25 ALR4th 157.

Effect, on jurisdiction of state court, of 28 U.S.C.S. § 1446(e), relating to removal of civil case to federal court. 38 ALR Fed. 824.

Propriety of federal court’s considering state prisoner’s petition under 28 U.S.C.S. § 2254 where prisoner has exhausted state remedies as to some, but not all, claims in petition. 43 ALR Fed. 631.

Removal to federal court, under 28 U.S.C.S. 1441(d), of civil action brought in state court against foreign state. 63 ALR Fed. 808.

Existence of pendent jurisdiction of federal court over state claim when joined with claim arising under laws, treaties, or Constitution of United States. 75 ALR Fed. 600.

Section 4. Qualifications of Justices and Judges.

Supreme court justices and superior court judges shall be citizens of the United States and of the State, licensed to practice law in the State, and possessing any additional qualifications prescribed by law. Judges of other courts shall be selected in a manner, for terms, and with qualifications prescribed by law.

Notes to Decisions

Directive of section is unqualified. —

The directive of this section that the legislature provide for the selection, terms, and qualifications of the judges of the courts it creates is unqualified and would appear to vest absolute discretion in the legislature. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Concept of judicial independence. —

It is impossible to extract from this article a firm concept of judicial independence applicable to legislatively created courts. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Magistrate is “judge”. —

A magistrate is not merely “an assistant” to a district court judge, but presides with full authority over a court of limited jurisdiction, exercising the judicial power vested by Alaska Const., art. IV, § 1. Such a person is a “judge” within the meaning of this section. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

“Term”. —

As it is used in this section, the word “term” was not intended to refer to a period of service that is fixed in time. A broader definition of the word, “the time for which something lasts,” is in closer accord with the apparent purposes of this section. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

With the exception of art. IV, wherever “term” or “service at the pleasure of” appears in the constitutional text originally adopted, the references are to a period of service for a particular office, thus allowing the drafters to be precise in their terminology. The language of this section and § 13 of this article, on the other hand, applies to any judge of any court the legislature might create, and “term” in that context may intend only the more general, though equally valid connotation of, any limitation on a period of service. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Provision that magistrates serve at the pleasure of the presiding judge of the superior court in the judicial district for which appointed does not conflict with the requirement of this section that judges be “selected . . . for terms prescribed by law,” since with respect to the accountability demanded in this requirement, service “at the pleasure of ” constitutes a “term.” Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Even if Alaska Const., art. IV, § 10, which created a commission on judicial qualifications which could recommend to the supreme court that a justice or judge be suspended, removed from office, retired, or censured, is applicable to magistrates, it does not restrict the legislature’s authority under this section to prescribe that magistrates shall serve at the pleasure of the presiding judge, since at the very least, the removal provisions of this article are supplementary to the removal procedure that defines the end of a judge’s term. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Appointment of district court judge to serve as superior court judge pro tempore. —

The chief justice’s authority under § 16 of this article to assign a judge “from one court . . . to another for temporary service,” includes the authority to appoint a judge of the district court to serve as judge of the superior court pro tempore, regardless of the differences that presently exist in the qualifications required by statute for permanent appointment to either of those courts. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

“Other courts.” —

District courts are “other courts” within the meaning of the second sentence of this section. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Quoted in

Delahay v. State, 476 P.2d 908 (Alaska 1970); In re G. M. B., 483 P.2d 1006 (Alaska 1971).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Collateral references. —

46 Am.Jur.2d, Judges, §§ 5 to 10.

48A C.J.S., Judges, §§ 28 to 35.

Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial office. 71 ALR3d 498.

Section 5. Nomination and Appointment.

The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council.

Notes to Decisions

Role of judicial counsel in selection process. —

The framers of Alaska’s constitution intended to maximize the role of the judicial council in selection of judicial candidates. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

The selection procedure enacted into law by AS 22.15.170 follows the constitutional scheme of this section for appointment of supreme court justices and superior court judges. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

Merit selection system held constitutional. —

As long interpreted by the federal courts, the Equal Protection Clause does not preclude Alaska from choosing to use a merit system in selecting its judges. Kirk v. Carpeneti, 623 F.3d 889 (9th Cir. Alaska 2010).

Temporary assignments. —

Where each of the special orders assigning a district court judge is expressly limited in duration or subject matter and none purport to confer upon him all the benefits of regular superior court service, these assignments do not interfere with the legislature’s power to fix the number of superior court judges, nor do they prevent the governor and judicial council from filling a vacancy on the superior court, and they are temporary assignments within the constitutional authority of the chief justice. Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Applied in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Quoted in

In re G. M. B., 483 P.2d 1006 (Alaska 1971); Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983).

Cited in

Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Section 6. Approval or Rejection.

Each supreme court justice and superior court judge shall, in the manner provided by law, be subject to approval or rejection on a nonpartisan ballot at the first general election held more than three years after his appointment. Thereafter, each supreme court justice shall be subject to approval or rejection in a like manner every tenth year, and each superior court judge, every sixth year.

Notes to Decisions

Rejection of federal system. —

The “terms” delineated in this section constituted a rejection of the federal judicial system, in which federal judges serve no “term” but remain in office for life unless impeached. The framers of the Alaska Constitution expressly sought a system in which justices and judges would be accountable for their performance in office. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Eligibility. —

Where two judges filed their declaration of candidacy forms after the August 1 deadline, they were not eligible to stand for retention, could not have their names placed on the ballot, and had to vacate their seats. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

“Appointment,” as that term is used in this section, means designation by the governor of the State of Alaska. Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983), cert. denied, 465 U.S. 1092, 104 S. Ct. 1580, 80 L. Ed. 2d 114 (U.S. 1984).

Scope of vote. —

This section of the state constitution does not specify that the vote will be held on a district-wide basis even though AS 15.35.080 currently provides that retention of superior court judges will be decided by the voters of the judge’s judicial district, and AS 15.35.100(b) sets forth the same rule for district court judges. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Removal provisions in § 10 of article held supplementary. —

At the very least, the provisions for removal of a judge in § 10 of this article are supplementary to the removal procedure that defines the end of a judge’s term. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Quoted in

In re G. M. B., 483 P.2d 1006 (Alaska 1971).

Section 7. Vacancy.

The office of any supreme court justice or superior court judge becomes vacant ninety days after the election at which he is rejected by a majority of those voting on the question, or for which he fails to file his declaration of candidacy to succeed himself.

Notes to Decisions

Interpretation. —

Plain meaning of this provision, and AS 22.10.100(b) (regarding superior court judges) and 22.15.170(e) (regarding district court judges), is that vacation is the mandatory consequence for a judge’s failure to file a declaration of candidacy. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Declaration of candidacy. —

Where two judges filed their declaration of candidacy forms after the August 1 deadlines, they were not eligible to stand for retention, could not have their names placed on the ballot, and had to vacate their seats. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Collateral references. —

46 Am.Jur.2d, Judges, §§ 218 to 225.

48A C.J.S., Judges, §§ 58 to 77.

Section 8. Judicial Council.

The judicial council shall consist of seven members. Three attorney members shall be appointed for six-year terms by the governing body of the organized state bar. Three non-attorney members shall be appointed for six-year terms by the governor subject to confirmation by a majority of the members of the legislature in joint session. Vacancies shall be filled for the unexpired term in like manner. Appointments shall be made with due consideration to area representation and without regard to political affiliation. The chief justice of the supreme court shall be ex-officio the seventh member and chairman of the judicial council. No member of the judicial council, except the chief justice, may hold any other office or position of profit under the United States or the State. The judicial council shall act by concurrence of four or more members and according to rules which it adopts.

Notes to Decisions

Merit selection system held constitutional. —

As long interpreted by the federal courts, the Equal Protection Clause does not preclude Alaska from choosing to use a merit system in selecting its judges. The lawyer members of the Judicial Council who are appointed by the bar association’s governing body must be either popularly elected or appointed by an elected official; moreover, the ultimate power to appoint judges is with the Governor. Kirk v. Carpeneti, 623 F.3d 889 (9th Cir. Alaska 2010).

“Term”. —

With the exception of Alaska Const., art. IV, §§ 4 and 13, wherever “term” or “service at the pleasure of ” appears in the constitutional text originally adopted, the reference is to a period of service for a particular office. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Meaning of phrase “position of profit”. —

See Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

And its intent. —

The term “position of profit” was intended to prohibit all other salaried non-temporary employment under the United States or the State of Alaska. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Applied in

Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Quoted in

Delahay v. State, 476 P.2d 908 (Alaska 1970).

Cited in

Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983); Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Section 9. Additional Duties.

The judicial council shall conduct studies for improvement of the administration of justice, and make reports and recommendations to the supreme court and to the legislature at intervals of not more than two years. The judicial council shall perform other duties assigned by law.

Notes to Decisions

Declaration of candidacy. —

Judicial council’s purpose for the communications to two judges who were up for retention was most obviously to satisfy the council’s own constitutional and statutory obligations; nothing implied a purpose of satisfying the candidates’ obligations to the Division of Election to submit their declarations of candidacy. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Section 10. Commission on Judicial Conduct.

The Commission on Judicial Conduct shall consist of nine members, as follows: three persons who are justices or judges of state courts, elected by the justices and judges of state courts; three members who have practiced law in this state for ten years, appointed by the governor from nominations made by the governing body of the organized bar and subject to confirmation by a majority of the members of the legislature in joint session; and three persons who are not judges, retired judges, or members of the state bar, appointed by the governor and subject to confirmation by a majority of the members of the legislature in joint session. In addition to being subject to impeachment under Section 12 of this article, a justice or judge may be disqualified from acting as such and may be suspended, removed from office, retired, or censured by the supreme court upon the recommendation of the commission. The powers and duties of the commission and the bases for judicial disqualification shall be established by law.

Cross references. —

For provisions on the powers and duties of the Commission on Judicial Conduct, see AS 22.30.011 ; for proceedings when a successful candidate for judicial retention or the campaign treasurer or deputy campaign treasurer of such a candidate has been convicted of a violation of the state election campaign laws, see AS 15.13.380(i)(4) .

Effect of amendments. —

The amendment effective October 11, 1968 (5th Legislature’s 2d FCCS SCS CSHJR 74 (1968)) rewrote this section to establish the commission and provide for “disqualification” of judges. Formerly, this section dealt only with incapacity and retirement of judges.

The amendment, effective December 24, 1982 (12th Legislature’s CSHJR 32 (Jud) am S (1981)), substituted “Conduct” for “Qualifications” following “Commission on Judicial,” substituted “three persons who are justices or judges of the state courts” for “one justice of the supreme court” preceding “elected by the justices,” substituted “and judges of the state courts” for “of the supreme court; three judges of the superior court, elected by the judges of the superior court; one judge of the district court, elected by the judges of the district court” following “elected by the justices,” substituted “three” for “two” preceding “members who have practiced law,” added “governor from nominations made by the” preceding “governing body of the organized bar,” added “and subject to confirmation by a majority of the members of the legislature in joint session” following “governing body of the organized bar” and substituted “three” for “two” preceding “persons who are not judges,”.

Notes to Decisions

Basis of 1968 amendment. —

The Alaska Commission on Judicial Qualifications (now Commission on Judicial Conduct) was created by a constitutional amendment which became effective in 1968. This amendment is based on a 1966 revision of the judicial article of the California Constitution. In re Hanson, 532 P.2d 303 (Alaska 1975).

Scope of commission’s powers. —

This section only empowers the commission to recommend sanctions to the Alaska Supreme Court. Granting the commission the authority to impose sanctions is not permitted. In re Inquiry Concerning A Judge, 762 P.2d 1292 (Alaska 1988).

Ultimate authority vested in supreme court. —

This section vests in the supreme court the ultimate authority in disciplinary matters affecting the judiciary. In re Hanson, 532 P.2d 303 (Alaska 1975).

This section and AS 22.30.070(c) unambiguously establish the supreme court of Alaska as the body entrusted with the ultimate dispositive decision in a judicial qualifications matter. In re Hanson, 532 P.2d 303 (Alaska 1975).

Power of supreme court to sanction judge under this section. —

Concerning the subject of sanctions this section and AS 22.30.070(c)(2) provide that upon recommendation of the Commission on Judicial Conduct the supreme court of Alaska may suspend, remove, retire or censure a judge. In re Robson, 500 P.2d 657 (Alaska 1972).

Supreme court is to exercise independent judgment. —

Normally considerable weight will be accorded to a given recommendation from the Commission on Judicial Qualifications (now Commission on Judicial Conduct), if supported by an adequate factual basis. Nevertheless, both this section and AS 22.30.070(c)(2) clearly establish that the supreme court of Alaska is to exercise its independent judgment in determining an appropriate sanction, if any, as to any recommendation made by the commission. In re Robson, 500 P.2d 657 (Alaska 1972).

The supreme court’s scope of review in a judicial qualifications proceeding should be that of an independent evaluation of the evidence. In re Hanson, 532 P.2d 303 (Alaska 1975).

And cannot adopt commission’s sanction recommendations automatically. —

It would be tantamount to an abdication of its constitutional and statutory obligations if the supreme court were to adopt the sanction recommendations of the Commission on Judicial Qualifications (now Commission on Judicial Conduct) automatically. In re Robson, 500 P.2d 657 (Alaska 1972).

Substantial evidence test employed in reviewing commission’s findings of fact. —

Regarding the scope of review which the supreme court should exercise in reviewing findings of fact of the Commission on Judicial Qualifications (now Commission on Judicial Conduct), there is no reason to depart from the substantial evidence test which has heretofore been employed in reviewing matters coming to the supreme court from administrative agencies and other governmental bodies. In re Robson, 500 P.2d 657 (Alaska 1972).

Review of commission’s recommendation is broader than substantial evidence criterion. —

Under the discretionary grant of power to the supreme court under this section and AS 22.30.070(c)(2), supreme court review of a particular recommendation by the commission is necessarily broader than the substantial evidence criterion adopted for review of findings of fact made by the commission. In re Robson, 500 P.2d 657 (Alaska 1972).

Duties of supreme court in cases concerning punishment of judge. —

In every case concerning the suspension, removal, retirement, or censorship of a judge, the supreme court must insure that procedural due process has been accorded the judicial officer proceeded against and that requisite findings of fact have been made and are supported by substantial evidence. The supreme court is further obligated to decide whether the commission’s recommended sanction is justified by the record and is in accord with the objectives of the commission as reflected in the relevant constitutional and statutory provisions. In re Robson, 500 P.2d 657 (Alaska 1972).

Imposition of more serious sanction than censure. —

Where judicial conduct which had been prejudicial to the administration of justice and had brought the judicial office into disrepute was weighed against the relative judicial inexperience of petitioner at the time, the supreme court concluded that imposition of a more serious sanction than censure would be inappropriate. In re Robson, 500 P.2d 657 (Alaska 1972).

Supreme court sanction decision made part of public record. —

Where the actions of a judge were serious enough infractions to justify its following the censure recommendation of the Commission on Judicial Qualifications (now Commission on Judicial Conduct), the supreme court was of the opinion that given the necessity for the creation of such a commission and the need for enforcement of standards of judicial conduct and canons of judicial ethics, these ends were more fully served by making of record its sanction decision. By making its sanction part of the public record, the supreme court believed that the public’s confidence would be maintained, both in the workings of the commission and in the ability of the judicial branch of government to insure its continued integrity. In re Robson, 500 P.2d 657 (Alaska 1972).

Applied in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Quoted in

Delahay v. State, 476 P.2d 908 (Alaska 1970).

Cited in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985); In re Johnstone, 2 P.3d 1226 (Alaska 2000); In re Cummings, 292 P.3d 187 (Alaska 2013); In re Dist. Court Judge, 392 P.3d 480 (Alaska 2017).

Collateral references. —

46 Am.Jur.2d, Judges, §§ 16 to 20.

48A C.J.S., Judges, §§ 100, 101.

Confidentiality of proceedings or reports of judicial inquiry board or commission. 5 ALR4th 730.

Section 11. Retirement.

Justices and judges shall be retired at the age of seventy except as provided in this article. The basis and amount of retirement pay shall be prescribed by law. Retired judges shall render no further service on the bench except for special assignments as provided by court rule.

Cross references. —

For provisions relating to judicial retirement, see AS 22.25.

Notes to Decisions

Mandatory retirement age requirement not violated.

Husband's claim that the reassignment of the superior court judge who presided over a divorce action violated Alaska Const. art. IV, § 11, was rejected where the judge had been appointed and reappointed by the chief justice pursuant to Alaska Admin. R. 23. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

Applied in

Native Village of Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983); Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983); Sharrow v. Archer, 658 P.2d 1331 (Alaska 1983).

Quoted in

Delahay v. State, 476 P.2d 908 (Alaska 1970).

Cited in

Sterud v. Chugach Elec. Ass'n, 640 P.2d 823 (Alaska 1982); Roach v. First Nat'l Bank, 643 P.2d 690 (Alaska 1982); Moloso v. State, 644 P.2d 205 (Alaska 1982); Newell v. National Bank, 646 P.2d 224 (Alaska 1982); Fedpac Int'l, Inc. v. State, Dep't of Revenue, 646 P.2d 240 (Alaska 1982); McMillan v. Anchorage Community Hosp., 646 P.2d 857 (Alaska 1982); Robbins v. Robbins, 647 P.2d 589 (Alaska 1982); Wien Air Alaska, Inc. v. State, Dep't of Revenue, 647 P.2d 1087 (Alaska 1982); Peter Pan Seafoods v. Stepanoff, 650 P.2d 375 (Alaska 1982); A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982); Curran v. Mount, 657 P.2d 389 (Alaska 1982).

Section 12. Impeachment.

Impeachment of any justice or judge for malfeasance or misfeasance in the performance of his official duties shall be according to procedure prescribed for civil officers.

Notes to Decisions

Quoted in

Delahay v. State, 476 P.2d 908 (Alaska 1970).

Section 13. Compensation.

Justices, judges, and members of the judicial council and the Commission on Judicial Qualifications shall receive compensation as prescribed by law. Compensation of justices and judges shall not be diminished during their terms of office, unless by general law applying to all salaried officers of the State.

Revisor’s notes. —

CSHJR 32(Jud) am S (1981), effective December 24, 1982, which changed the “Commission on Judicial Qualifications” to the “Commission on Judicial Conduct” inadvertently omitted express amendment of this section.

Effect of amendments. —

The amendment, effective October 11, 1968 (5th Legislature’s 2d FCCS SCS CSHJR 74 (1968)), inserted “and the Commission on Judicial Qualifications” in the first sentence.

Notes to Decisions

“Term”. —

With the exception of this article, wherever “term” or “service at the pleasure of” appears in the constitutional text originally adopted, the reference is to a period of service for a particular office, thus allowing the drafters to be precise in their terminology. The language of this section and § 4 of this article, on the other hand, applies to any judge of any court the legislature might create, and “term” in that context may intend only the more general, though equally valid, connotation of any limitation on a period of service. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

“Term of office” as used in this section means the time to which a justice or judge is entitled to hold office and does not relate to the 10-year or six-year intervals between retention elections for justices and judges. Hudson v. Johnstone, 660 P.2d 1180 (Alaska 1983).

Collateral references. —

46 Am.Jur.2d, Judges, §§ 50 to 60.

48A C.J.S., Judges, §§ 181 to 203.

Section 14. Restrictions.

Supreme court justices and superior court judges while holding office may not practice law, hold office in a political party, or hold any other office or position of profit under the United States, the State, or its political subdivisions. Any supreme court justice or superior court judge filing for another elective public office forfeits his judicial position.

Opinions of attorney general. —

The prohibition against dual office holding is literally enforced in Alaska. December 27, 1976 Op. Att’y Gen.

The purpose of the prohibition against dual office holding is to guard against conflicts of interest, self-aggrandizement, concentration of power, and dilution of separation of powers in regard to the exercise of the executive, judicial, and legislative functions of the state government. December 27, 1976 Op. Att’y Gen.

Since the Board of Regents of the University of Alaska is not an interbranch commission, a judge may not sit as a regent while holding office. December 27, 1976 Op. Att’y Gen.

A judge does not sit on the Board of Regents in a representative capacity of the judicial branch. When he sits as a regent he is not exercising judicial power but rather certain executive powers of control vested in the regents over the state’s sole institution of higher learning. This he may not do. December 27, 1976 Op. Att’y Gen.

The University Alaska is an instrumentality of the state, and membership on its Board of Regents is necessarily an office under the state. December 27, 1976 Op. Att’y Gen.

Notes to Decisions

Meaning of phrase “position of profit”. —

See Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

And its intent. —

The term “position of profit” was intended to prohibit all other salaried non-temporary employment under the United States or the State of Alaska. Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Applied in

Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Section 15. Rule-Making Power.

The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.

Notes to Decisions

Analysis

I.General Consideration

Scope of rule-making power. —

The supreme court’s rule-making power under this section is explicitly broad and very nearly complete. Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991).

Authority to enact procedures is judicial. —

While the power to create substantive rights is a legislative power, the authority to enact procedures to implement those rights is, by virtue of this section, judicial. Thomas v. State, 566 P.2d 630 (Alaska 1977).

In Alaska, the supreme court is given exclusive, initial power to make rules governing practice and procedure and they need not look to the legislature’s intentions to discern whether it has attempted to prescribe a different procedure than that contained in a court rule, unless the legislature has acted in the requisite manner to change a rule. Nolan v. Sea Airmotive, 627 P.2d 1035 (Alaska 1981).

Because administration of justice is day-to-day business of courts. —

A reason for placing in the judicial branch of government rather than in the legislature the initial and primary responsibility for making rules of court practice and procedure is that the administration of justice is the day-to-day business of the courts; they are better equipped than a legislature to know the most effective and easiest methods of conducting that business. City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

Promulgation of rules of practice and procedure. —

The superior court has no responsibility or authority to promulgate rules of practice and procedure. Lee v. State, 374 P.2d 868 (Alaska 1962).

Under this section the responsibility for promulgating rules governing practice and procedure in civil and criminal cases in all courts rests with the supreme court. Lee v. State, 374 P.2d 868 (Alaska 1962).

Supreme court can return case to trial court for further proceedings. —

In any appropriate case where there is disregard for the rules of court, the supreme court can exercise its supervisory power to return the case to the trial court for further proceedings. McCracken v. Davis, 560 P.2d 771 (Alaska 1977).

Declaration of appellate rule supremacy over procedural statutes is an expression of the judicial power distributed to the courts by this section and § 1 of this article. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Distinction between substantive and procedural law. —

Substantive law creates, defines and regulates rights, while procedural law prescribes the method of enforcing the rights. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969); Nolan v. Sea Airmotive, 627 P.2d 1035 (Alaska 1981).

For the court to invalidate a statute as “procedural” requires them to find, first, that the statute indeed conflicts with a rule promulgated by the court, and, second, that the main subject of the statute is not substantive with only an incident effect on procedure, Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975), Channel Flying, Inc. v. Bernhardt , 451 P.2d 570 (Alaska 1969), and finally, that the legislature has not changed the rule with the stated intention of doing so, Leege v. Martin, 379 P.2d 447 (Alaska 1963). Nolan v. Sea Airmotive, 627 P.2d 1035 (Alaska 1981).

The manner in which the exercise of judicial power may be invoked, initially by commencing a civil action in court, is a matter directly involved with court practice and procedure, the regulation of which has been committed to the supreme court under the constitution. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

Children’s proceedings are among “civil and criminal cases in all courts” over which this section gives the supreme court rule-making authority which is intended to be plenary and not capable of reduction by relabeling of proceedings. RLR v. State, 487 P.2d 27 (Alaska 1971).

The investigative demand procedure set forth in AS 45.50.590 and 45.50.592 does not conflict with the rulemaking power vested in the Supreme Court by this section insofar as it involves hearings to modify or set aside investigative demands and not proceedings to compel production of document. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

The time limit for filing an appeal from an administrative order is a procedural matter and is therefore subject to the Alaska supreme court’s supremacy over such matters pursuant to this section. Owsichek v. Guide Licensing & Control Bd., 627 P.2d 616 (Alaska 1981).

AS 47.10.070 , providing for exclusion of the public from juvenile hearings, is procedural, so is outside the scope of legislative authority unless two-thirds of each house of the legislature votes to change the rule promulgated by the supreme court in this matter. RLR v. State, 487 P.2d 27 (Alaska 1971).

AS 22.20.022 is not constitutionally invalid as an attempt to usurp the rule-making powers of the supreme court insofar as it provides for a peremptory disqualification of a judge. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969).

AS 22.20.022 does not merely regulate procedure. With or without it the particular action in court takes the same course. The statute rather creates and defines a right — the right to have a fair trial before an unbiased and impartial judge. This is something more than merely prescribing a method of enforcing a right. The main subject matter of AS 22.20.022 is substantive in nature and was within the province of the legislature to deal with. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969).

Right under AS 22.20.022 subject to rule-making power. —

While recognizing the legislature’s authority to create the right to disqualify a judge by peremptory challenge under AS 22.20.022 , the procedure to be followed in implementing that right is subject to the rule-making power vested in the supreme court by this section. Padie v. State, 566 P.2d 1024 (Alaska 1977).

Statute changing delinquency law penalties. —

Enactment of former AS 47.10.010(e), changing criminal penalties faced by 16- and 17-year-olds for certain criminal acts did not violate this section since it did not alter the delinquency rules but, rather, it redefined the coverage of the delinquency law. Nao v. State, 953 P.2d 522 (Alaska Ct. App. 1998).

Criminal Rule 24(d) is not unconstitutional insofar as it purports to allow the prosecution peremptory challenges of jurors. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

The right to jury review of municipal tax assessments does not encroach upon the judicial power reserved to the courts by this section and § 1 of this article. Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Crim. R. 45, the speedy trial rule, is not unconstitutional as an unconstitutional use of the supreme court’s rule-making power. Koch v. State, 653 P.2d 664 (Alaska Ct. App. 1982).

Since the question of whether Crim. R. 45, the speedy trial rule, is a substantive rule which is an unconstitutional exercise of the supreme court’s rule making power has been before the supreme court twice ( James v. State , 567 P.2d 298, 299-300 n. 3 (Alaska 1977); Peterson v. State , 562 P.2d 1350 (Alaska 1977) and neither time did the court reach the question of the rule’s constitutionality, the court of appeals held that Cr. R. 45 is not unconstitutional. State v. Williams, 653 P.2d 1067 (Alaska Ct. App. 1982), aff'd in part, vacated in part, 681 P.2d 313 (Alaska 1984).

Crim. R. 45 is a constitutional exercise of the Alaska Supreme Court’s rule-making authority. State v. Williams, 681 P.2d 313 (Alaska 1984).

Promulgation of Civil Rule 90.3 (child support awards) did not violate the separation of powers doctrine. Coghill v. Coghill, 836 P.2d 921 (Alaska 1992).

Authority to award costs of appeal. —

By rule in general, the supreme court has the authority to award costs in connection with an appeal to the supreme court of Alaska. Cont'l Ins. Co. v. United States Fid. & Guar. Co., 552 P.2d 1122 (Alaska 1976); Department of Highways v. Salzwedel, 596 P.2d 17 (Alaska 1979).

The superior court was without jurisdiction to award fees for supreme court proceedings. Department of Highways v. Salzwedel, 596 P.2d 17 (Alaska 1979).

Awarding of costs incurred in administrative proceedings. —

The authority granted by this section is limited to the promulgation of rules for the administration of the state judiciary, and in light of the doctrine of separation of powers implicit in the state constitution, a judicial power to award compensation for costs incurred in administrative proceedings cannot be implied. State v. Smith, 593 P.2d 625 (Alaska 1979).

A superior court order awarding a dentist attorney fees for legal expenses incurred in opposing the administrative order “from inception through appeal” was improper and therefore vacated. State v. Smith, 593 P.2d 625 (Alaska 1979).

Former Appellate R. 29(d) promulgated pursuant to this section. —

Former Appellate R. 29(d), which governed the award of attorney fees when administrative agency rulings are appealed to the superior court, was promulgated under authority conferred upon the supreme court of Alaska by this section. State v. Smith, 593 P.2d 625 (Alaska 1979); Department of Highways v. Salzwedel, 596 P.2d 17 (Alaska 1979).

Former Administrative Rule 12(d)(2)(vii) [amended and renumbered as Administrative Rule 12(e)(2)], pertaining to the appointment of counsel for absent service persons pursuant to the Servicemembers’ Civil Relief Act, was adopted under constitutional authority. Department of Revenue, Child Support Enforcement Div. ex rel. Dew v. Superior Court, 907 P.2d 14 (Alaska 1995).

Constitutionality of AS 12.30.040(b) . —

AS 12.30.040(b) , which denies release on bail before sentencing or pending appeal to persons convicted of an unclassified or class A felony, is not an unconstitutional invasion of the supreme court’s rule-making power since it does not conflict with any supreme court rule. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

No conflict exists between AS 12.30.040(b) and Crim. R. 41(a), which provides that a defendant in a criminal proceeding is entitled to bail pursuant to AS 12.30.010 12.30.080 , since Crim. R. 41(a) adopted by reference subsequent amendments, including the 1982 amendment to AS 12.30.040(b) . Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

For interpretation of statute relating to bail prior to sentencing (AS 12.30.040(b) , as amended in 1982) to avoid conflicting with Crim. R. 41, see Parker v. State, 667 P.2d 1272 (Alaska Ct. App. 1983).

The administration of a witness oath is within the scope of the supreme court’s authority to “make and promulgate rules governing the administration of all courts.” Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Former AS 24.40.030 violated this section. —

Former AS 24.40.030 (see now AS 24.40.031 ), which provided for postponement of civil proceedings when a party, attorney or witness was a member of the legislature, was in violation of the provisions of this section. City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

The enactment of former AS 24.40.030 constituted an attempt to modify, in violation of this section, the rules of court then in effect, specifically Rule 4(f) of the Uniform Rules of the District Court for the District of Alaska, which was in all material matters identical to the present Alaska Civ. R. 40(e), requiring the hearing of cases on the date set for trial unless continued by court order for cause shown. City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

Former AS 24.40.030 was enacted in 1959, at which time the legislative session was 81 days long, and the provisions of that section did not necessarily interfere greatly with the administration of the judicial system. The 1972 session, however, extended 161 days, and when additional periods of time involving attendance at interim legislative committee meetings and the 30 days from the adjournment of sessions were added as required by that section, it was readily apparent that the mandatory continuance provision could have grave consequences on the administration of the judicial system. City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

Initiative attempting to alter or supplement existing rules. —

Lieutenant governor properly denied certification of an initiative that would have set maximum allowable levels of attorney’s fees in personal injury cases, where the initiative constituted an attempt to prescribe a rule of court in violation of Alaska Const., art. XI, § 7 and would have altered or supplemented existing court rules regulating contingent fees. Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991).

Attorney fees were properly granted to plaintiff, the prevailing licensee, for breach of a settlement agreement. Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709 F.3d 872 (9th Cir. Alaska), cert. denied, 571 U.S. 1024, 134 S. Ct. 644, 187 L. Ed. 2d 420 (U.S. 2013), amended, 738 F.3d 960 (9th Cir. Alaska 2013), amended, 738 F.3d 960 (9th Cir. Alaska 2013).

Applied in

State v. Browder, 486 P.2d 925 (Alaska 1971); Gieffels v. State, 552 P.2d 661 (Alaska 1976); Livingston v. Livingston, 572 P.2d 79 (Alaska 1977); McCracken v. Corey, 612 P.2d 990 (Alaska 1980); Galbraith v. State, 693 P.2d 880 (Alaska Ct. App. 1985).

Quoted in

Ware v. City of Anchorage, 439 P.2d 793 (Alaska 1968); Alaska v. O/S Lynn Kendall, 310 F. Supp. 433 (D. Alaska 1970); State v. Anchorage, 513 P.2d 1104 (Alaska 1973); State v. Lundgren Pac. Constr. Co., 603 P.2d 889 (Alaska 1979); State v. Wassillie, 606 P.2d 1279 (Alaska 1980); City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316 (Alaska 1982); Price v. State, 647 P.2d 611 (Alaska Ct. App. 1982); State v. Dobrova, 694 P.2d 157 (Alaska 1985); O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); Walstad v. State, 818 P.2d 695 (Alaska Ct. App. 1991).

Stated in

Dep't of Revenue, Child Support Enforcement Div. ex rel. Gerke v. Gerke, 942 P.2d 423 (Alaska 1997).

Cited in

Stokes v. Van Seventer, 355 P.2d 594 (Alaska 1960); Continental Ins. Cos. v. Bayless & Roberts, 548 P.2d 398 (Alaska 1976); David v. Sturm, Ruger & Co., 557 P.2d 1133 (Alaska 1976); Smiloff v. State, 579 P.2d 28 (Alaska 1978); Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979); Wise Mechanical Contractors v. Bignell, 626 P.2d 1085 (Alaska 1981); Sundberg v. State, 657 P.2d 843 (Alaska Ct. App. 1982); State, Dep't of Pub. Safety v. Wilkinson, 688 P.2d 939 (Alaska 1984); Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984); Andreanoff v. State, 746 P.2d 473 (Alaska Ct. App. 1987); Charlesworth v. State, Child Support Enf't Div., 779 P.2d 792 (Alaska 1989); State v. Wickham, 796 P.2d 1354 (Alaska 1990); In re D.D.S., 869 P.2d 160 (Alaska 1994); Alaska Pub. Interest Research Group v. State, 167 P.3d 27 (Alaska 2007); W.S. v. State, 174 P.3d 256 (Alaska Ct. App. 2008); State, Dep't. of Health & Social Servs. v. Michelle P., 411 P.3d 576 (Alaska 2018).

II.Legislative Review

Form of legislative measure changing rules. —

This constitutional provision does not specify the form a legislative measure should take — no wording is required which would indicate that the power to change rules is being exercised. Leege v. Martin, 379 P.2d 447 (Alaska 1963).

If wording indicating that a power to change rules is being exercised is not made a requirement, the purpose of the constitutional provision vesting rule-making power in the judiciary will be defeated. Leege v. Martin, 379 P.2d 447 (Alaska 1963).

Bill must specifically state purpose of changing rules. —

A legislative enactment will not be effective to change court rules of practice and procedure unless the bill specifically states that its purpose is to effect such a change. Leege v. Martin, 379 P.2d 447 (Alaska 1963); Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984); see also Nolan v. Sea Airmotive, 627 P.2d 1035 (Alaska 1981).

Otherwise courts will regard changes as unintentional. —

Unless the specific intent of the legislature to change procedure is expressed in the bill itself, the courts, as a matter of practical necessity, will have to regard procedural changes as unintentional. Leege v. Martin, 379 P.2d 447 (Alaska 1963).

Judicial power to make rules of practice and procedure is not absolute. Leege v. Martin, 379 P.2d 447 (Alaska 1963); City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

The legislature has no power to make rules, but only to change them by two-thirds vote. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969).

The legislature may change rules initiated by the judiciary when the desirability of making a change is evident, such as in a case where a particular rule of procedure may involve considerations of public policy that are better left to the legislature to pass upon. Leege v. Martin, 379 P.2d 447 (Alaska 1963); City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

But the power of legislative review is not without restrictions. Leege v. Martin, 379 P.2d 447 (Alaska 1963); City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

Two-thirds vote required to change rules. —

The constitutional convention was careful to provide that court rules could not be changed as simply as other laws could be enacted. A two-thirds vote of the members elected to each house, rather than a simple majority, is required in order to change rules of practice and procedure. Leege v. Martin, 379 P.2d 447 (Alaska 1963); City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

Legislation limiting the public-interest exception in attorney’s fees court rule. —

The public interest litigant exception to Alaska R. Civ. P. 82 is a rule of substantive law, and is not merely procedural, and could be changed by the Legislature without a two-thirds vote; therefore, Chapter 86, SLA 2003, prohibiting discrimination in the awarding of attorney fees and costs in civil actions or appeals involving public interest litigants, which limited application of the public interest litigant exception, is not invalid. State v. Native Village of Nunapitchuk, 156 P.3d 389 (Alaska 2007).

The object of the limitation on the legislature is to prevent unintentional, rash, ill-considered and too easy intervention by the legislature which would ultimately frustrate the sound purpose in giving courts the primary authority and responsibility for regulating their own affairs. Leege v. Martin, 379 P.2d 447 (Alaska 1963).

Collateral references. —

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution. 91 ALR5th 437.

Section 16. Court Administration.

The chief justice of the supreme court shall be the administrative head of all courts. He may assign judges from one court or division thereof to another for temporary service. The chief justice shall, with the approval of the supreme court, appoint an administrative director to serve at the pleasure of the supreme court and to supervise the administrative operations of the judicial system.

Cross references. —

For provisions concerning retirement benefits of administrative director, see AS 22.25.012 .

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s FCCS SCS CSHJR 11 (1970)), substituted “the pleasure of the supreme court” for “his pleasure” in the last sentence.

Legislative history reports. —

For report on 1970 House Joint Resolution No. 11 (FCCS SCS CSHJR 11), see 1969 House Journal, p. 427; 1970 House Journal, p. 1388; 1970 Senate Journal, p. 1167.

Notes to Decisions

Appointment of district court judge to serve as superior court judge pro tempore. —

The chief justice’s authority under this section to assign a judge “from one court . . . to another for temporary service,” includes the authority to appoint a judge of the district court to serve as judge of the superior court pro tempore, regardless of the differences that presently exist in the qualifications required by statute for permanent appointment to either of those courts. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Consecutive short term appointments by the chief justice do not rise to the level of permanence, thus exceeding the temporary assignment power. Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Where each of the special orders assigning a district court judge is expressly limited in duration or subject matter and none purport to confer upon him all the benefits of regular superior court service, these assignments do not interfere with the legislature’s power to fix the number of superior court judges, nor do they prevent the governor and judicial council from filling a vacancy on the superior court, and they are temporary assignments within the constitutional authority of the chief justice. Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Applied in

Larson v. State, 564 P.2d 365 (Alaska 1977); American Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330 (Alaska 1982); Alaska USA Fed. Credit Union v. Fridriksson, 642 P.2d 804 (Alaska 1982); City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316 (Alaska 1982); In re Vogt, 642 P.2d 819 (Alaska 1982); Wortham v. State, 641 P.2d 223 (Alaska Ct. App. 1982); Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982); Davidson v. State, 642 P.2d 1383 (Alaska Ct. App. 1982); Bowlin v. State, 643 P.2d 1 (Alaska Ct. App. 1982); Jolley v. State, 655 P.2d 784 (Alaska Ct. App. 1982); Willis Flooring v. Howard S. Lease Constr. Co. & Assocs., 656 P.2d 1184 (Alaska 1983); Sweaney v. Alaska Cent. Airways, 658 P.2d 780 (Alaska 1983); Carman v. State, 658 P.2d 131 (Alaska Ct. App. 1983); Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983); Linn v. State, 658 P.2d 150 (Alaska Ct. App. 1983); Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992); Brackhan v. State, 839 P.2d 414 (Alaska Ct. App. 1992).

Quoted in

Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981).

Cited in

United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983); Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983); Drumbarger v. State, 716 P.2d 6 (Alaska Ct. App. 1986); Smith v. State, 745 P.2d 1375 (Alaska Ct. App. 1987); Peel v. State, 751 P.2d 1366 (Alaska Ct. App. 1988); Jones v. Municipality of Anchorage, 754 P.2d 275 (Alaska Ct. App. 1988); Cavanaugh v. State, 754 P.2d 757 (Alaska Ct. App. 1988); Washington v. State, 755 P.2d 401 (Alaska Ct. App. 1988); Hertz v. State, 755 P.2d 406 (Alaska Ct. App. 1988); Horton v. State, 758 P.2d 628 (Alaska Ct. App. 1988); Clifton v. State, 758 P.2d 1279 (Alaska Ct. App. 1988); In re J.H., 758 P.2d 1287 (Alaska Ct. App. 1988); Gundersen v. Municipality of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988); Thiel v. State, 762 P.2d 478 (Alaska Ct. App. 1988); Michael v. State, 767 P.2d 193 (Alaska Ct. App. 1988); Betzner v. State, 768 P.2d 1150 (Alaska Ct. App. 1989); Gundersen v. Municipality of Anchorage, 769 P.2d 436 (Alaska Ct. App. 1989); Kelly v. State, 803 P.2d 876 (Alaska Ct. App. 1990); Reekie v. Municipality of Anchorage, 803 P.2d 412 (Alaska Ct. App. 1990); Breck v. Moore, 910 P.2d 599 (Alaska 1996); Simon v. State, 349 P.3d 191 (Alaska Ct. App. 2015); Noble v. State, 357 P.3d 1201 (Alaska Ct. App. 2015); Shayen v. State, 373 P.3d 532 (Alaska Ct. App. 2015); Adams v. State, 359 P.3d 990 (Alaska Ct. App. 2015); Kowalski v. State, 426 P.3d 1148 (Alaska Ct. App. 2018).

Article V Suffrage and Elections

Section 1. Qualified Voters.

Every citizen of the United States who is at least eighteen years of age, who meets registration residency requirements which may be prescribed by law, and who is qualified to vote under this article, may vote in any state or local election. A voter shall have been, immediately preceding the election, a thirty day resident of the election district in which he seeks to vote, except that for purposes of voting for President and Vice President of the United States other residency requirements may be prescribed by law. Additional voting qualifications may be prescribed by law for bond issue elections of political subdivisions.

Cross references. —

For voter qualification for presidential election, see AS 15.05.012 .

Effect of amendments. —

The amendment, effective October 9, 1966 (4th Legislature’s SJR 1 (1966)), substituted “A voter” for “He” at the beginning of the second sentence, inserted the exception in that sentence and substituted “A voter” for “He” at the beginning of a former third sentence, which was deleted by a 1970 amendment.

The first 1970 amendment, effective October 10, 1970 (6th Legislature’s HJR 7 (1969)), substituted “eighteen” for “nineteen” in the first sentence.

The second 1970 amendment, effective October 10, 1970 (6th Legislature’s HJR 51 am S (1970)), deleted a former third sentence which read: “A voter shall be able to read or speak the English language as prescribed by law, unless prevented by physical disability.”

The amendment effective October 14, 1972 (7th Legislature’s HJR 126 am S (1972)) inserted “residency” in the first sentence and substituted “thirty day resident” for “for one year a resident of Alaska and for thirty days a resident” in the second sentence.

Legislative history reports. —

For report on 1969 House Joint Resolution No. 7, see 1969 House Journal, p. 443. For report on 1970 House Joint Resolution No. 51 (HJR 51 am S), see 1970 House Journal, p. 130.

Opinions of attorney general. —

The legislature must have intended that the point of measurement for qualifications other than those of residence be the same as set out in the constitution; that is, the same as the requirements for residence. 1960 Alas. Op. Att'y Gen. No. 21.

Any attempt to determine the eligibility of a voter as to residence (1) in the state and (2) in the election district, at any time other than the date of the election, would be unconstitutional. 1960 Alas. Op. Att'y Gen. No. 21.

This section of the constitution, holding that citizens who meet certain requirements may vote is one of the provisions that would preclude the banning of write-in votes. The other is Alaska Const., art. I, § 2 which states that government originates with the people and is founded on their will. 1963 Alas. Op. Att'y Gen. No. 30.

Any Alaskan qualified to vote under this section may also vote in a borough election without pre-registering. 1965 Alas. Op. Att'y Gen. No. 9.

The proper construction of this section is that reregistration less than 30 days prior to an election precludes the person from voting only in the district races of his new residency. Thus, if a person reregisters in his new district less than 30 days before an election, he may vote a questioned ballot in his new district, and his votes will be counted as to statewide candidates and issues (and other matters common to both districts). 1982 Alas. Op. Att'y Gen. No. 7.

Notes to Decisions

Aliens excluded from voting in state elections. —

Under express language of this section, aliens are excluded from voting in the State of Alaska. Park v. State, 528 P.2d 785 (Alaska 1974).

Since section limits privilege to United States citizens. —

The plain meaning of the language of this section limits the voting privilege to citizens of the United States. Park v. State, 528 P.2d 785 (Alaska 1974).

Such limitation does not conflict with Alaska Const., art. I, § 1. —

Limiting the voting privilege to citizens of the United States does not conflict with the equal protection clause of Alaska Const., art. I, § 1. Park v. State, 528 P.2d 785 (Alaska 1974).

It must be assumed that the drafters of our constitution considered that the qualifications for voting stated in this section did not create a classification prohibited by the Declaration of Rights in Alaska Const., art. I, § 1, as the provisions were adopted concurrently. Park v. State, 528 P.2d 785 (Alaska 1974).

The federal constitution does not invalidate this section. Park v. State, 528 P.2d 785 (Alaska 1974).

The equal protection clause of the 14th Amendment to the United States Constitution does not guarantee state voting rights for aliens. Park v. State, 528 P.2d 785 (Alaska 1974).

It is basic to democratic society that the people be afforded the opportunity of expressing their will on the multitudinous issues which confront them. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Exclusion of nonproperty owners from bond elections. —

The provisions of a state constitution and statutes which exclude nonproperty owners from elections for the approval of the issuance of general obligation bonds violate the Equal Protection Clause of the United States Constitution. City of City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S. Ct. 1990, 26 L. Ed. 2d 523 (U.S. 1970).

Our decision will apply only to authorizations for general obligation bonds which are not final as of June 23, 1970, the date of this decision. In the case of states authorizing challenges to bond elections within a definite period, all elections held prior to the date of this decision will not be affected by this decision unless a challenge on the grounds sustained by this decision has been or is brought within the period specified by state law. City of City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S. Ct. 1990, 26 L. Ed. 2d 523 (U.S. 1970).

Nonresident property owner may not vote. —

The second sentence of this section leaves no room for broadening the qualifications to permit a nonresident property owner to vote. Turkington v. City of Kachemak, 380 P.2d 593 (Alaska 1963).

Fixing voter’s residence within district. —

A post office box or private mail service address is clearly not a voter’s fixed place of habitation and is therefore insufficient to fix voter’s residence within a voting district. Thus, any voter providing such an address as his or her residence would be ineligible to vote unless he or she provided additional information regarding that voter’s residence. Fischer v. Stout, 741 P.2d 217 (Alaska 1987).

Elmendorf Air Force Base is a bounded area wholly within Senate District H. Thus, merely listing “Elmendorf Air Force Base” is sufficient to fix a voter’s residence to a specific locale within District H. Fischer v. Stout, 741 P.2d 217 (Alaska 1987).

There is no constitutional requirement of precinct residency, and there is clear statutory authorization for persons claiming to be registered voters to vote a questioned ballot if there is no evidence of registration in the precinct in which the voter seeks to vote. Hammond v. Hickel, 588 P.2d 256 (Alaska 1978), cert. denied, 441 U.S. 907, 99 S. Ct. 1998, 60 L. Ed. 2d 376 (U.S. 1979).

Requirement for residency in district. —

Votes for state representative cast by voters in an election district from which they had moved were not counted, where, even though they had failed to reregister in their new district, election officials had written notice of a change in their residency. Cissna v. Stout, 931 P.2d 363 (Alaska 1996).

A vote for state representative cast by a voter in an election district from which she had moved was not counted where she reregistered in her new district on the day she mailed her absentee ballot. Cissna v. Stout, 931 P.2d 363 (Alaska 1996).

Cross-precinct voting authorized by statute. —

Cross-precinct voting, which occurs when a voter registered in one precinct votes a questioned ballot in a different precinct in the same election district, is authorized by statute. Hammond v. Hickel, 588 P.2d 256 (Alaska 1978), cert. denied, 441 U.S. 907, 99 S. Ct. 1998, 60 L. Ed. 2d 376 (U.S. 1979).

Waiver of challenges to cross-district voting. —

Challenges to the validity of cross-district voting, which occurs when a voter registered in one district casts a questioned ballot in a different district, are waived if not raised before the ballots are separated and commingled. Hammond v. Hickel, 588 P.2d 256 (Alaska 1978), cert. denied, 441 U.S. 907, 99 S. Ct. 1998, 60 L. Ed. 2d 376 (U.S. 1979).

Home rule city may prohibit dual position-holding. —

A home rule city may prohibit dual position-holding consistent with equal protection and the right of franchise when the prohibition is narrowly drawn to serve compelling governmental interests. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Home rule charter section which prohibited a person who holds or has held an elective city office from being eligible for appointment to an office or for employment for which a salary is paid by the city until one year has elapsed following the term for which he was elected or appointed, unless an exception is made with the approval of four or more members of the city council, did not unduly restrict the rights of franchise of the citizens of the city by placing a burden on city employees who seek election to the city council. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Quoted in

Dodge v. Meyer, 444 P.3d 159 (Alaska 2019).

Stated in

Green v. State, 462 P.2d 994 (Alaska 1969).

Cited in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966); Kohlhaas v. State, 223 P.3d 105 (Alaska 2010); Griswold v. Homer Advisory Planning Comm'n, 484 P.3d 120 (Alaska 2021).

Collateral references. —

25 Am.Jur.2d, Elections, § 100 et seq.

29 C.J.S., Elections, §§ 26 to 46.

Elections: effect of conviction under federal law, or law of another state or country, on right to vote or hold public office. 39 ALR3d 303.

Residence of students for voting purposes. 44 ALR3d 797.

Right of married woman to use maiden surname. 67 ALR3d 1266.

Voting rights of persons mentally incapacitated. 80 ALR3d 1116.

Constitutionality of voter participation provisions for primary elections. 120 ALR5th 125.

Section 2. Disqualifications.

No person may vote who has been convicted of a felony involving moral turpitude unless his civil rights have been restored. No person may vote who has been judicially determined to be of unsound mind unless the disability has been removed.

Cross references. —

For disqualification for felony conviction, see AS 15.05.030 .

Notes to Decisions

Proposed term-limits initiative was unconstitutional. —

Initiative proposal which would, if passed by state voters, limit terms of members of the Alaska legislature to two consecutive senate terms, four consecutive house terms, or eight consecutive years in any combination of house or senate service would impose “qualifications” on candidates’ and voters’ rights in addition to those set out in the Constitution and would therefore be unconstitutional. Thus, the lieutenant governor’s decision to deny certification of the initiative was correct. Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Quoted in

Green v. State, 462 P.2d 994 (Alaska 1969).

Collateral references. —

25 Am.Jur.2d, Elections, §§ 168 to 172.

29 C.J.S., Elections, §§ 37 to 40, 43.

Elections: effect of conviction under federal law, or law of another state or country, on right to vote or hold public office. 39 ALR3d 303.

Voting rights of persons mentally incapacitated. 80 ALR3d 1116.

Section 3. Methods of Voting; Election Contests.

Methods of voting, including absentee voting, shall be prescribed by law. Secrecy of voting shall be preserved. The procedure for determining election contests, with right of appeal to the courts, shall be prescribed by law.

Cross references. —

For election contests, see AS 15.20.540 et seq. and notes thereto.

Opinions of attorney general. —

The legislature has no power to designate particular seats in the house of representatives to which candidates must seek nomination and election. Likewise, there is nothing in the constitution to indicate that the advisory reapportionment board or the governor has the power to so designate the seats. 1961 Alas. Op. Att'y Gen. No. 20.

The legislature may provide by law for appeal to the courts to decide election contests involving members of the legislature or Congress, but the legislature is the sole judge of the election qualifications of its members. March 29, 1963 Op. Att’y Gen.

Notes to Decisions

Legislative power to enact method of determining whether act and initiative are substantially same. —

This section and Alaska Const., art. XI, § 4, and art. XII, § 11, when read in harmony, give the legislature the power to enact a method of determining whether an act and an initiative are “substantially the same,” as used in Alaska Const., art. XI, § 4. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

No provision for contest of local elections. —

The legislature has not fully implemented this provision by providing for the contest of local elections. Turkington v. City of Kachemak, 380 P.2d 593 (Alaska 1963); Dale v. Greater Anchorage Area Borough, 439 P.2d 790 (Alaska 1968).

But this is not of grave consequence. —

The fact that the legislature may not have specifically provided for any preliminary administrative determination of local election contests before resort could be had to the courts is not of grave consequence. Turkington v. City of Kachemak, 380 P.2d 593 (Alaska 1963).

As following procedure for contesting state elections is reasonable. —

No procedure having been prescribed by the legislature for getting local election contests before the courts, following the procedure for contesting state elections is a reasonable method of getting the matter before the court, and the juridiction of the court to hear the matter is recognized by the constitution. Turkington v. City of Kachemak, 380 P.2d 593 (Alaska 1963).

Requirement as to candidate’s filing of designation of treasurer. —

Statutory requirement that a candidate’s designation of treasurer be filed by a specified due date is not constitutionally unreasonable. Silides v. Thomas, 559 P.2d 80 (Alaska 1977).

Secrecy of voting not violated by partially closed primary. —

The partially closed primary does not violate the guarantee that “secrecy of voting” shall be preserved, because as long as the Division of Elections takes the necessary steps to prevent individual voters’ ballot preferences from becoming a matter of public record, the partially closed ballot will not impermissibly infringe the Alaska constitution’s voting secrecy clause. O'Callaghan v. Director of Elections, 6 P.3d 728 (Alaska 2000).

Collateral references. —

26 Am.Jur.2d, Elections, §§ 298 to 355, 381 et seq.

29 C.J.S., Elections, §§ 215 to 235.

Constitutionality of voter participation provisions for primary elections. 120 ALR5th 125.

Section 4. Voting Precincts; Registration.

The legislature may provide a system of permanent registration of voters, and may establish voting precincts within election districts.

Notes to Decisions

There is no constitutional provision which prohibits the requirement of registration prior to exercising the right to vote. United States v. Bowden, 166 F.2d 701, 11 Alaska 503 (9th Cir. Alaska 1948).

Section 5. General Elections.

General elections shall be held on the second Tuesday in October of every even-numbered year, but the month and day may be changed by law.

Cross references. —

For statutory provisions changing the date of general elections, see AS 15.15.020 .

Article VI Legislative Apportionment

Section 1. House Districts.

Members of the house of representatives shall be elected by the qualified voters of the respective house districts. The boundaries of the house districts shall be set under this article following the official reporting of each decennial census of the United States.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), substituted “house districts” for “election districts” in the first sentence and rewrote the second sentence, which read: “Until reapportionment, election districts and the number of representatives to be elected from each district shall be as set forth in Section 1 of Article XIV.”

Opinions of attorney general. —

The legislature may not break election districts down into wards or subdistricts. 1961 Alas. Op. Att'y Gen. No. 20.

Notes to Decisions

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Collateral references. —

81 C.J.S., States, § 115 to 137.

Section 2. Senate Districts.

Members of the senate shall be elected by the qualified voters of the respective senate districts. The boundaries of the senate districts shall be set under this article following the official reporting of each decennial census of the United States.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), rewrote the second sentence, which read: “Senate districts shall be as set forth in Section 2 of Article XIV, subject to changes authorized in this article.”

Opinions of attorney general. —

A court could declare Alaska’s entire legislative apportionment system unconstitutional on the ground that the senate’s apportionment was invalid whether or not the house was validly apportioned. 1964 Alas. Op. Att'y Gen. No. 4 (issued prior to 1998 amendment).

Notes to Decisions

Senate must be apportioned according to population. —

Since the adoption of the Alaska Constitution in 1956 the United States supreme court has ruled that both houses of a state legislature must be apportioned according to population. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Reapportionment of senate must be similar to reapportionment of house. —

Although no provision comparable to this article governs reapportionment of the senate, the supreme court has held that the senate, too, must be reapportioned similarly to the house of representatives in order to conform to constitutional requirements imposed by the United States supreme court. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Intent of constitutional convention as to reapportionment of senate. —

See Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

The senate was unconstitutionally apportioned. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

No specific provision is made for changing senatorial representation. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Reapportionment to be performed by governor. —

It is the intent of the constitution that the function of reapportionment be performed only by the governor with the assistance of the reapportionment board. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

An enlightened construction of this article which permits realization of its fundamental purpose, that reapportionment not be dependent in any manner on legislative initiative and that effective means of enforcement be readily available to any voter, is that its remaining constitutional provisions provide the implied power in the governor and the reapportionment board to reapportion the senate on an interim basis. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Because the Alaska Constitution makes no provision for reapportionment of the senate, the supreme court has held that on an interim basis until amendment of the Alaska Constitution the governor has the power to reapportion the senate in the same manner as specified by the constitution for the reapportionment of the house. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Not the legislature. —

No part of the authority or responsibility for apportionment was intended to be entrusted to the legislature. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Constitutional amendment providing for senate reapportionment urged. —

Since the constitution does not specifically provide for senate reapportionment and impermissibly limits the house reapportionment base to civilian population, the supreme court has strongly urged that an appropriate amendment to the constitution be prepared and presented to the electorate. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The reapportionment plan proclaimed by the governor on September 3, 1965 was declared to be effective for the 1966 primary and general elections and thereafter until the state constitution has been amended to provide a valid, permanent reapportionment plan for the senate. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

1972 interim reapportionment plan. —

The interim reapportionment plan fashioned by the supreme court for the 1972 legislative elections, with population variations ranging from +23.75 to -45.93 percent in the house and from +26.14 to -17.22 percent in the senate violated the United States constitutional guarantee of equal protection. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Collateral references. —

81 C.J.S., States, § 115 to 137.

Section 3. Reapportionment of House and Senate.

The Redistricting Board shall reapportion the house of representatives and the senate immediately following the official reporting of each decennial census of the United States. Reapportionment shall be based upon the population within each house and senate district as reported by the official decennial census of the United States.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), substituted “Redistricting Board” for “governor” and inserted “and the senate” in the first sentence; substituted “the population within each house and senate district as reported by the official decennial census of the United States” for “civilian population within each election district as reported by the census” in the second sentence.

Opinions of attorney general. —

When a concentrated area of population, not having a sufficient population to become a district in itself, prefers to be transferred to its adjacent district within the local senate district, the transfer is possible under the constitution, provided that all constitutional requirements for redistricting are met. 1961 Alas. Op. Att'y Gen. No. 20 (issued prior to 1998 amendment).

The drafters of the constitution put reapportionment in the hands of the governor, acting on the advice of a reapportionment board, and specifically rejected the idea of giving reapportionment to the legislature. 1964 Alas. Op. Att'y Gen. No. 4 (issued prior to 1998 amendment).

The Alaska constitutional convention reports and minutes indicate that the delegates who drafted this article gave the duty of reapportioning to the governor for one reason: a legislature cannot and should not be expected to properly reapportion itself. 1964 Alas. Op. Att'y Gen. No. 4 (issued prior to 1998 amendment).

Alaska Const., art. VI, § 4, provides that the house will be apportioned on the “method of equal proportions,” which is a population-based method widely used in reapportionment of Congressional districts. 1964 Alas. Op. Att'y Gen. No. 4 (issued prior to 1998 amendment).

Notes to Decisions

House must be apportioned according to population. —

Since the adoption of the Alaska Constitution in 1956 the United states supreme court has ruled that both houses of a state legislature must be apportioned according to population. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Military personnel cannot be arbitrarily eliminated from population base. —

Military personnel as a class cannot be deprived of the right to vote, and they cannot be arbitrarily eliminated in a population base used to design an apportionment scheme. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

In the absence of reliable data, the elimination of the military from the population base as a class of persons would be a denial of equal protection of the law, prohibited by the 14th amendment to the United States Constitution.Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Alaska’s constitution requires that the requisite population total be arrived at by use of the census data. It does not mandate a population base composed exclusively of registered voters, citizens who have previously voted in Alaska, or only those people living in Alaska with the intention of making Alaska their home. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

But some military may be excluded as device to limit impact of transients. —

But while the clause of the Alaska Constitution seeking to exclude military as a class is unconstitutional, that is not to say that some military cannot be excluded as a permissible device for limiting the impact of transients and nonresidents on legislative districting. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

It is necessary to distinguish the degree of precision required in dealing with representational rights as against the strict right to vote. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The substantial military population present in the state because of military orders and without intention to make Alaska their home can easily give an unbalanced representation to areas abutting their bases. But there is a need for a permanent plan which achieves a level of accuracy of their voting participation which is closer than either including or excluding all military as a class. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

It is not offensive to notions of equal protection to exclude from the population base even military personnel who have lived in Alaska for substantial periods of time, so long as those people have exercised their option to remain residents and domiciliaries of other states. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

This section is invalid insofar as it is based on “civilian population”. —

The provision basing reapportionment upon civilian population within each election district as reported by the census is invalid insofar as it is based on “civilian population.” Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Exclusion of military from population base in 1974 revised reapportionment plan. —

In the 1974 revised reapportionment plan, there was no discrimination against all military as a class and no improper exclusion of military personnel based on the nature of their employment. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Provision requiring exclusive use of census is not severable. —

The provisions of that portion of this section requiring that “reapportionment shall be based upon civilian population within each election district as reported by the census” is not severable. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The constitutional provision requiring exclusive use of the census would not have been enacted independently of the void reference to “civilian population.” Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

If the requirement to use census figures were to be retained after striking the provision which limited the base to civilian population, the apparent intent of the members of the constitutional convention to prevent the large number of military personnel concentrated in small areas of the state, who do not regard the state as their home and do not actively participate in its affairs, from distorting the representational base might be frustrated. Only skeletal information of location and mobility characteristics of the military can be extrapolated from census data. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Alternatives to the census base should be permitted. —

Because the equal protection clause of the United States Constitution requires more specific factual justification than the census for eliminating portions of the military from the population base, the board and the governor should be permitted to use alternates to the census base. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

For a discussion of alternative plans which may be available to handle the problem of developing a reapportionment plan which achieves an accurate assessment of the military vote, see Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

There is no longer a specific constitutional mandate as to the population base to be utilized by the governor. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

In the absence of a constitutional amendment reestablishing specific guidelines, the governor has the power to select alternative bases for reapportionment purposes, such as a registered voter, state citizenship or state residency base. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

The governor may select from among different available statistical compilations. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

This section places in the executive the full authority and responsibility for reapportionment. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

The governor, with the assistance of the reapportionment board, must reapportion representation in the house of representatives on a method of equal proportions every 10 years. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Because the Alaska Constitution makes no provision for reapportionment of the senate, the supreme court has held that on an interim basis until amendment of the Alaska Constitution the governor has the power to reapportion the senate in the same manner as specified by the constitution for the reapportionment of the house. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Audit of initiative petition signatures held reasonable. —

In an initiative imposing additional taxes on the cruise ship industry, although the Alaska Election Division’s method of auditing signatures pursuant to Alaska Const. art. XI, § 3, and AS 15.45.120 , 15.45.130 , was imprecise in that voting registration status could only be verified as of the date the petitions were filed, the audit was reasonable given that there was no statutory requirement that each signature be dated at the time of the audit. N. W. Cruiseship Ass'n of Alaska, Inc. v. Office of Lieutenant Governor, Div. of Elections, 145 P.3d 573 (Alaska 2006).

Constitutional amendment urged. —

Since the constitution does not specifically provide for senate reapportionment and impermissibly limits the reapportionment base to civilian population, the supreme court strongly has urged that an appropriate amendment to the constitution be prepared and presented to the electorate. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

1972 interim reapportionment plan. —

The interim reapportionment plan fashioned by the supreme court for the 1972 legislative elections, with population variations ranging from +23.75 to -45.93 percent in the house and from +26.14 to -17.22 percent in the senate violated the United States constitutional guarantee of equal protection. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Use of 1970 census data in determining population base to be used for reapportionment in 1974 revised reapportionment plan did not constitute error. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Reapportionment between decennial census. —

Although required by municipal charter to declare itself malapportioned upon receipt of a properly signed petition supported by reliable evidence of malapportionment, the Anchorage Assembly’s failure to do so did not raise constitutional considerations since the constitutional requirement of reapportionment is satisfied by reapportionment based upon a decennial census. Kentopp v. Anchorage, 652 P.2d 453 (Alaska 1982) (decided prior to 1998 amendment).

Limited supreme court review. —

Since the governor’s authority to choose census data as a population base is not limited by either the state or the federal constitution, supreme court review is restricted to whether that authority has been exercised in a rational as opposed to an arbitrary manner. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Quoted in

Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983). (decided prior to 1998 amendment).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010); In re 2011 Redistricting Cases, 294 P.3d 1032 (Alaska 2012).

Collateral references. —

81 C.J.S., States, § 115 to 137.

Section 4. Method of Redistricting.

The Redistricting Board shall establish forty house districts, with each house district to elect one member of the house of representatives. The board shall establish twenty senate districts, each composed of two house districts, with each senate district to elect one senator.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), rewrote this section, which read: “Reapportionment shall be by the method of equal proportions, except that each election district having the major fraction of the quotient obtained by dividing total civilian population by forty shall have one representative.”

Editor’s notes. —

The amendments proposed by 2010 Legislative Resolve 53 (SJR 21 am H) (number of house and senate districts) were rejected by voters.

Opinions of attorney general. —

This section applies equally to all present and future election districts without any restriction to the original districts. 1961 Alas. Op. Att'y Gen. No. 21 (issued prior to 1998 amendment).

Notes to Decisions

This section establishes the formula for reapportionment. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Section 5. [Repealed].

[Repealed by 1998 Ballot Measure No. 3 (1998 Legislative Resolve 74; 20th Legislature’s SCS CSHJR 44(JUD)).]

Section 6. District Boundaries.

The Redistricting Board shall establish the size and area of house districts, subject to the limitations of this article. Each house district shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Each shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty. Each senate district shall be composed as near as practicable of two contiguous house districts. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), substituted “The Redistricting Board shall establish the size and area of house districts” for “The governor may further redistrict by changing the size and area of election districts” at the beginning of the first sentence; substituted “Each house district” for “Each new district so created” at the beginning of the second sentence; in the third sentence substituted “as nearly as practicable” for “at least equal” and “the population of the state” for “the total civilian population”; and added the fourth sentence.

Editor’s notes. —

The amendment proposed by 2010 Legislative Resolve 53 (SJR 21 am H) (number of house and senate districts) was rejected by voters

Opinions of attorney general. —

The Advisory Reapportionment Board may always divide a district into smaller districts provided the requirements laid down in this section are complied with. 1961 Alas. Op. Att'y Gen. No. 20 (issued prior to 1998 amendment).

Notes to Decisions

Hickel process. —

Redistricting Board’s plan failed to follow the process for redistricting in Hickel v. Southeast Conference , 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska, Mar. 12, 1993, Nos. S-5093, 5106, 5154, 5156) (decided prior to 1998 amendment) by first incorporating requirements of contiguity, compactness, and socioeconomic integration and boundary descriptions before determining if the Voting Rights Act was offended. In re 2011 Redistricting Cases, 274 P.3d 466 (Alaska 2012).

Alaska Redistricting Board (Board) failed to follow the process for redistricting in Hickel v. Southeast Conference , 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska, Mar. 12, 1993, Nos. S-5093, 5106, 5154, 5156) (decided prior to 1998 amendment) when drafting its Amended Proclamation Plan and was required to draft a new plan, Alaska Const. art. VI, § 6; however, the Board was not required to make specific findings about each district relating to Constitutional requirements nor submit a plan to the superior court at each stage of drafting. In re 2011 Redistricting Cases, 294 P.3d 1032 (Alaska 2012).

2001 redistricting plan. —

Appellee redistricting board’s proposed plan for redistricting was unconstitutional and the court remanded for the board to reconsider the plan. In re 2001 Redistricting Cases, 44 P.3d 141 (Alaska 2002).

Because the redistricting board’s Amended Final Plan fully complied with the court’s March 21, 2002 order and was not otherwise unconstitutional, the court affirmed the superior court’s May 9, 2002 order upholding the plan. In re 2001 Redistricting Cases, 47 P.3d 1089 (Alaska 2002).

Alaska Const., art. VI, § 6 provides that each house district shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty. This means that the Alaska provision will in many cases be stricter than the federal threshold. The redistricting at issue was not unconstitutional. In re 2001 Redistricting Cases, 47 P.3d 1089 (Alaska 2002).

Governor’s 1991 reapportionment plan. —

The governor’s 1991 reapportionment plan’s formulation of districts 1, 2, and 3 violated this section because the districts were not socio-economically integrated and they easily could have been. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

District 35, in the governor’s 1991 reapportionment plan, which joined the North Slope Inupiaq and the Interior Athabaskan areas, was not valid under this section because it did not encompass a relatively integrated socio-economic area. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

The separation of the Aleutian Islands into two districts in the governor’s reapportionment plan violated the contiguous territory requirement of this section. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

Configuration in the governor’s reapportionment plan which divided the Mat-Su Borough among five districts was invalid, since it unfairly diluted the proportional representation guaranteed to the Mat-Su Borough’s residents. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

Voter’s constitutional challenge to a borough reapportionment plan, on the basis that it violated equal protection by drawing improper district lines to dilute the majority vote, failed because the reapportionment plan was reasonable, not arbitrary, had been adopted by a majority vote, and nothing in the record proved the borough’s intent to disenfranchise voters. Braun v. Borough, 193 P.3d 719 (Alaska 2008), cert. denied, 556 U.S. 1128, 129 S. Ct. 1620, 173 L. Ed. 2d 996 (U.S. 2009).

1984 creation of Senate District E violative of equal protection. —

The creation of Senate District E tended toward disproportionality of representation and therefore impermissibly discriminated against Anchorage voters under Alaska’s equal protection clause, even though it was not violative of the federal equal protection clause; however, since the effect of the discrimination was de minimus, the state was not required to redraw the district. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987) (decided prior to 1998 amendment).

The 1984 creation of the North Kenai-South Anchorage District satisfies the Alaska Constitution’s contiguity, compactness, and socio-economic integration requirements. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987) (decided prior to 1998 amendment).

Section inapplicable to senate seats. —

In the absence of a constitutional amendment to the contrary and given the framers’ intent to use geographic area and rural representation as the criteria for apportioning senate seats, the requirements of this section do not apply to the redistricting of senate seats. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987) (decided prior to 1998 amendment).

The need for numerical adjustment is the very focus of the mandate to reapportion. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

State must make good-faith effort to achieve equality. —

The Equal Protection Clause of the United States Constitution requires that a state make an honest and good-faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment); Groh v. Egan, 526 P.2d 863 (Alaska 1974). (decided prior to 1998 amendment).

Former rigid standards relaxed. —

Rigid standards for reapportionment applied in Egan v. Hammond , 502 P.2d 856 (1972), have been somewhat ameliorated. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Showing of justification required for deviations in reapportionment. —

In the absence of a showing that the manner of reapportioning a state was improperly motivated or had an impermissible effect, deviations of up to 10 percent require no showing of justification. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

The state has the burden of showing that deviations in excess of 10 percent are “based on legitimate considerations incident to the effectuation of a rational state policy.” Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment); Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987). (decided prior to 1998 amendment).

When variances permitted. —

Only after a good-faith effort has been made to achieve precise mathematical equality may variances be permitted. And then the state has the burden of justifying in detail each such variance. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The standard for reapportionment allowed two separate justifications for deviation from the ideal population figures. The first was variance occurring because of uncontrollable factors, despite a good-faith effort to achieve mathematical precision. The second acceptable deviation was that which “the state must justify” — the implication being that while it had been a controllable deviation, other factors “incident to the effectuation of a rational state policy” could be advanced in justification. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Acceptable state policies to justify deviation were greatly limited. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Impermissible factors in justifying disparities. —

Neither history alone, nor economic or other sorts of group interests, were permissible factors in attempting to justify disparities from population-based representation. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Modern developments and improvements in transportation and communications made rather hollow, in the mid-1960’s, most claims that deviations from population-based representation could validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives was impaired were today, for the most part, unconvincing. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Insuring voice in legislature to political subdivision was substantive. —

A consideration that appeared to be of more substance in justifying some deviations from population-based representation in state legislatures was that of insuring some voice to political subdivisions, as political subdivisions. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Retention of political boundaries as justification for deviation. —

Retention of political boundaries is a legitimate justification for a deviation from ideal district population size in excess of 10%, but this policy must be consistently applied to the state as a whole. Nevertheless, retention of political boundaries may be sufficient justification for such deviation, even though political boundaries have been crossed in creating districts in other parts of the state, where the differences between the retained political subdivision and its outlying communities are sufficiently distinct. Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987) (decided prior to 1998 amendment).

No adequate justification offered for variances in 1971 interim reapportionment plan. —

The 1971 interim reapportionment plan fashioned by the supreme court for the 1972 legislative elections was held unconstitutional since there was no adequate justification offered for the variances which range from +23.35 to -45.93 percent in the house districts, and from +26.14 to -17.2 percent in the senate districts. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

It is significant to note that in no case coming before the supreme court of the United States have population variances approaching those of the 1971 plan been upheld, while less substantial variances have been repeatedly rejected as unconstitutional. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Requisites for finding of vote dilution. —

Mere lack of proportional representation will be insufficient to support a finding of unconstitutional vote dilution. Plaintiffs must prove both intentional discrimination against a group and a discriminatory effect on that group. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

Burden of challenging unconstitutionality of method or motive of districting. —

Where the method or motive of districting rather than the mathematical precision of the apportionment is being challenged, the challenger bears the burden of proving unconstitutionality. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Difficulty of creating districts of equal population under this section. —

The supreme court recognizes the difficulty of creating districts of equal population while also conforming to the Alaska constitutional mandate that the districts “be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area.” Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

When Alaska’s geographical, climatical, ethnic, cultural and socio-economical differences are contemplated the task of creating districts of equal population while conforming to this section assumes Herculean proportions commensurate with Alaska’s enormous land area. The problems are multiplied by Alaska’s sparse and widely scattered population and the relative inaccessibility of portions of the state. Surprisingly small changes in district boundaries create large percentage variances from the ideal population. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

When confronted with conditions so different from those of any other single state in the continental United States, it is readily apparent that it becomes well nigh impossible to achieve the mathematical precision of equal proportions which is feasible in those other states. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

For discussion of geographical, demographical, ethnical, cultural, and economical conditions in Alaska in relation to redistricting, see Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Odd-shaped corridors. —

Odd-shaped districts may well be the natural result of Alaska’s irregular geometry. However, “corridors” of land that extend to include a populated area, but not the less-populated land around it, may run afoul of the compactness requirement under this section. Likewise, appendages attached to otherwise compact areas may violate the requirement of compact districting. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

Open sea within election district. —

Absolute contiguity of land masses is impossible in Alaska, considering her numerous archipelagos. Accordingly, a contiguous district may contain some amount of open sea. However, the potential to include open sea in an election district is not without limits. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

Meaning of the term “socioeconomic area”. —

See Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

“Relatively integrated” areas. —

“Relatively,” as used in this section, means that proposed districts should be compared to other previously existing and proposed districts as well as principal alternative districts to determine if socio-economic links are sufficient. “Relatively” does not mean “minimally,” and it does not weaken the constitutional requirement of integration. Hickel v. Southeast Conference, 846 P.2d 38 (Alaska 1992), modified, — P.2d — (Alaska 1993) (decided prior to 1998 amendment).

A community such as the Greater Anchorage Borough might be considered a socio-economic area. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Exclusion of nonresident military members and dependents from the apportionment population base did not violate equal protection. Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment).

Failure to exclude nonresident fish processors and lumber workers. —

Reapportionment Advisory Board’s alleged failure to identify and exclude groups of nonresidents including fish processors and lumber workers while excluding nonresident military members and dependents from population bases did not result in an inaccurate population base and substantial variations from the actual populations among the election districts. Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment), appeal dismissed, Carpenter v. Hammond, 464 U.S. 801, 104 S. Ct. 45, 78 L. Ed. 2d 67 (U.S. 1983).

Power of governor to authorize constitutional device to accomplish redistricting. —

Redistricting is inseparable from reapportionment and the governor should be able to authorize any constitutional device to accomplish the task. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Such as terminating senate terms. —

The governor has the power to terminate senate terms as incidental to his general reapportionment powers. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

A need to truncate the terms of incumbents may arise when reapportionment results in a permanent change in district lines which either excludes substantial numbers of constituents previously represented by the incumbent or includes numerous other voters who did not have a voice in the selection of that incumbent. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The discretionary authority to require mid-term elections when necessary is well established. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

And designating seats within multi-member districts. —

The governor’s general power to reapportion includes the right to utilize the tool of designated seats within multi-member districts. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

And changing boundaries and areas. —

It is clear that the governor is authorized to redistrict by changing boundaries and areas. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The creation of single-member districts from multi-member districts is within the powers available to the governor. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The creation of single-member districts from multi-member districts would appear to be a concomitant power under the authorization to redistrict. Furthermore, this authority is inherent in the general power to reapportion the legislature. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

The governor may create single-member districts from multi-member districts. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

The power to create single-member districts applies to integrated socio-economic areas as well as to other areas. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

The supreme court does not construe the Alaska constitutional requirement that districts be formed from contiguous, compact, relatively integrated socio-economic areas to prohibit smaller districts within such areas. The smaller districts would still conform to the constitutional standard. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Plan whereby Anchorage was divided into six election districts upheld. —

See Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Implied power to reapportion senate on interim basis. —

Under the Alaska Constitution the governor with the assistance of the reapportionment board has the implied power to reapportion the senate on an interim basis. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Inclusion of Cordova in House Election District 2 by the 1981 legislative reapportionment plan violated the requirement in this section that each new district so created shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment), appeal dismissed, 464 U.S. 801, 104 S. Ct. 45, 78 L. Ed. 2d 67 (1983).

Standing. —

A plaintiff in a reapportionment suit has standing to assert the rights of voters in a district in which the plaintiff does not reside or vote as long as the plaintiff is a qualified voter. Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment), appeal dismissed, 464 U.S. 801, 104 S. Ct. 45, 78 L. Ed. 2d 67 (1983).

Stated in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Section 7. [Repealed].

[Repealed by 1998 Ballot Measure No. 3 (1998 Legislative Resolve 74; 20th Legislature’s SCS CSHJR 44(JUD)).]

Section 8. Redistricting Board.

  1. There shall be a redistricting board. It shall consist of five members, all of whom shall be residents of the state for at least one year and  none of whom may be public employees or officials at the time of or during the tenure of appointment. Appointments shall be made without regard to political affiliation. Board members shall be compensated.
  2. Members of the Redistricting Board shall be appointed in the year in which an official decennial census of the United States is taken and by September 1 of that year. The governor shall appoint two members of the board. The presiding officer of the senate, the presiding officer of the house of representatives, and the chief justice of the supreme court shall each appoint one member of the board. The appointments to the board shall be made in the order listed in this subsection. At least one board member shall be a resident of each judicial district that existed on January 1, 1999. Board members serve until a final plan for redistricting and proclamation of redistricting has been adopted and all challenges to it brought under Section 11 of this article have been resolved after final remand or affirmation.
  3. A person who was a member of the Redistricting Board at any time during the process leading to final adoption of a redistricting plan under Section 10 of this article may not be a candidate for the legislature in the general election following the adoption of the final redistricting plan.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), rewrote this section, which read: “The governor shall appoint a reapportionment board to act in an advisory capacity to him. It shall consist of five members, none of whom may be public employees or officials. At least one member each shall be appointed from the Southeastern, Southcentral, Central, and Northwestern Senate Districts. Appointments shall be made without regard to political affiliation. Board members shall be compensated.”

Notes to Decisions

Appointments to be made “without regard to political affiliation.” —

The obvious purpose of the constitutional provision that appointments be made “without regard to political affiliation” was to prevent the appointment of a board whose efforts might result in a politically motivated reapportionment plan. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Bi-partisan (sic) board not required. —

The phrase “without regard to political affiliation” is not the equivalent of requiring a “bi-partisan” board. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

But certain political considerations are germane. —

In reviewing the validity of the appointment of a board, some (although not necessarily all) of the following considerations would appear to be germane: The political affiliation of members of the board; the nature of their activities in partisan politics, particularly if from one political party only; and the expertise and general qualifications which members bring to the board. Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment).

Quoted in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment); Begich v. Jefferson, 441 P.2d 27 (Alaska 1968) (decided prior to 1998 amendment); Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment).

Cited in

Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment); Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Section 9. Board Actions.

The board shall elect one of its members chairman and may employ temporary assistants. Concurrence of three members of the Redistricting Board is required for actions of the Board, but a lesser number may conduct hearings. The board shall employ or contract for services of independent legal counsel.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)) rewrote this section, which read: “The board shall elect one of its members chairman and may employ temporary assistants. Concurrence of three members is required for a ruling or determination, but a lesser number may conduct hearings or otherwise act for the board.”

Notes to Decisions

Quoted in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Section 10. Redistricting Plan and Proclamation.

  1. Within thirty days after the official reporting of the decennial census of the United States or thirty days after being duly appointed, whichever occurs last, the board shall adopt one or more proposed redistricting plans. The board shall hold public hearings on the proposed plan, or, if no single proposed plan is agreed on, on all plans proposed by the board. No later than ninety days after the board has been appointed and the official reporting of the decennial census of the United States, the board shall adopt a final redistricting plan and issue a proclamation of redistricting. The final plan shall set out boundaries of house and senate districts and shall be effective for the election of members of the legislature until after the official reporting of the next decennial census of the United States.
  2. Adoption of a final redistricting plan shall require the affirmative votes of three members of the Redistricting Board.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), rewrote this section, which read: “Within ninety days following the official reporting of each decennial census, the board shall submit to the governor a plan for reapportionment and redistricting as provided in this article. Within ninety days after receipt of the plan, the governor shall issue a proclamation of reapportionment and redistricting. An accompanying statement shall explain any change from the plan of the board. The reapportionment and redistricting shall be effective for the election of members of the legislature until after the official reporting of the next decennial census.”

Opinions of attorney general. —

This section’s mandate that 1960’s reapportionment plan remain in effect until 1970 had to give way to the United States supreme court’s rulings on reapportionment. 1964 Alas. Op. Att'y Gen. No. 4 (issued prior to 1998 amendment).

Notes to Decisions

Commencement of board’s function. —

The constitutional convention provided that the reapportionment board should automatically commence to function after the decennial census, without any direction from the governor. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

How plan becomes law. —

Once a valid reapportionment plan has been established and proclaimed, it becomes law, or “effective,” by the force of the constitution. Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment).

Quoted in

Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010); In re 2011 Redistricting Cases, 294 P.3d 1032 (Alaska 2012).

Section 11. Enforcement.

Any qualified voter may apply to the superior court to compel the Redistricting Board, by mandamus or otherwise, to perform its duties under this article or to correct any error in redistricting. Application to compel the board to perform must be filed not later than thirty days following the expiration of the ninety-day period specified in this article. Application to compel correction of any error in redistricting must be filed within thirty days following the adoption of the final redistricting plan and proclamation by the board. Original jurisdiction in these matters is vested in the superior court. On appeal from the superior court, the cause shall be reviewed by the supreme court on the law and the facts. Notwithstanding Section 15 of Article IV, all dispositions by the superior court and the supreme court under this section shall be expedited and shall have priority over all other matters pending before the respective court. Upon a final judicial decision that a plan is invalid, the matter shall be returned to the board for correction and development of a new plan. If that new plan is declared invalid, the matter may be referred again to the board.

Effect of amendments. —

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), rewrote this section, which read: “Any qualified voter may apply to the superior court to compel the governor, by mandamus or otherwise, to perform his reapportionment duties or to correct any error in redistricting or reapportionment. Application to compel the governor to perform his reapportionment duties must be filed within thirty days of the expiration of either of the two ninety-day periods specified in this article. Application to compel correction of any error in redistricting or reapportionment must be filed within thirty days following the proclamation. Original jurisdiction in these matters is hereby vested in the superior court. On appeal, the cause shall be reviewed by the supreme court upon the law and the facts.”

Notes to Decisions

Legislative intent. —

The drafters of this provision intended that appellate review be in the nature of a de novo proceeding, but without additional evidence being presented. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Reapportionment power resides in executive. —

This section does not confer upon the supreme court the power to decide what is preferable between alternative rational plans. If that were the case, there would be little reason to provide for the governor to promulgate the reapportionment plan after receiving the recommendations of the Advisory Reapportionment Board. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

The constitutional authority to reapportion resides in the executive, not the courts. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Since the governor’s authority to choose census data as a population base was not limited by either the state or the federal constitution, supreme court review was restricted to whether that authority has been exercised in a rational as opposed to an arbitrary manner. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

When jurisdiction conferred on courts. —

Jurisdiction is conferred on the courts only when an application is made to compel the governor “to perform his reapportionment duties or to correct any error in redistricting or reapportionment.” Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

It cannot be said that what the supreme court may deem to be an unwise choice of any particular provision of a reapportionment plan from among several reasonable and constitutional alternatives constitutes “error” which would invoke the jurisdiction of the courts. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Standing. —

A plaintiff in a reapportionment suit has standing to assert the rights of voters in a district in which the plaintiff does not reside or vote as long as the plaintiff is a qualified voter. Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (decided prior to 1998 amendment).

Standard of review. —

See Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment); Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987) (decided prior to 1998 amendment).

Reapportionment matter is considered de novo on appeal. —

In reviewing a reapportionment plan the supreme court will consider the matter de novo upon the record developed in the superior court. Groh v. Egan, 526 P.2d 863 (Alaska 1974) (decided prior to 1998 amendment).

Stated in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966) (decided prior to 1998 amendment); Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Cited in

Egan v. Hammond, 502 P.2d 856 (Alaska 1972) (decided prior to 1998 amendment); In re 2011 Redistricting Cases, 294 P.3d 1032 (Alaska 2012).

Cross references. —

For cases relating to redistricting plans and for a list of current districts, see the note at art. XIV.

Article VII Health, Education and Welfare

Section 1. Public Education.

The legislature shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions. Schools and institutions so established shall be free from sectarian control. No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.

Editor’s notes. —

The amendment proposed by HJR 73 am S (1976) (direct financial aid to students) was rejected by voters.

Opinions of attorney general. —

There is neither constitutional nor statutory prohibition to the exercise of discretion by the commissioner of education, or by the respective school district authorities, in allowing secular and religious organizations to rent school buildings during nonschool hours. 1966 Alas. Op. Att'y Gen. No. 3.

This section would apply only in those cases where the school districts are providing a direct benefit to a religious or private institution by rental of school buildings during nonschool hours. 1966 Alas. Op. Att'y Gen. No. 3.

If the rate for religious groups renting a school building during nonschool hours is substantially lower than the rate for secular groups, the difference would be a gift of school property resulting in a “direct benefit” and would be an improper use of money raised by taxation. 1966 Alas. Op. Att'y Gen. No. 3.

Borough funds are clearly “public funds” within the meaning of these constitutional provisions. 1980 Alas. Op. Att'y Gen. No. 6.

Secondary education fund created by ordinance in a borough constituted an appropriation of public funds expended for direct benefit of a private education institution. 1980 Alas. Op. Att'y Gen. No. 6.

Notes to Decisions

Intent of section. —

This section was intended to ensure that the legislature establish a system of education designed to serve children of all racial backgrounds. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

This section guarantees all children of Alaska a right to public education. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Education is a matter of statewide concern. Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

This section was designed to commit Alaska to the pursuit of public, not private education, without requiring absolute governmental indifference to any student choosing to be educated outside the public school system. Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979).

Section constitutes mandate for pervasive state authority in field of education. —

The constitutional mandate of this section for pervasive state authority in the field of education could not be more clear. First, the language is mandatory, not permissive. Second, this section not only requires that the legislature “establish” a school system but also gives to that body the continuing obligation to “maintain” the system. Finally, the provision is unqualified; no other unit of government shares responsibility or authority. Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

The Alaska Constitution, as interpreted by the supreme court, provides a clear mandate for pervasive state authority in the field of education. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Effect of delegating certain educational functions to local boards. —

That the legislature has seen fit to delegate certain educational functions to local boards in order that Alaska schools might be adapted to meet the varying conditions of different localities does not diminish constitutionally mandated state control over education under this section. Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

History of public education in Alaska. —

See Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Provision for education of Alaskan children is governed in the first instance by this section, which directs the legislature to establish and maintain a system of public schools. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

This section imposes a duty upon the state legislature. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

And it confers upon Alaska school age children a right to education. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Title 14 of the Alaska statutes has been enacted pursuant to this section. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

The reference to all children of the state in this section seems to have been designed to elevate to constitutional status the consensus that Alaska’s pre-statehood dual system of education should be ended. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Uniformity in school system not required. —

Unlike most state constitutions, the Constitution of Alaska does not require uniformity in the school system. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

In this section, the Alaska Constitution appears to contemplate different types of educational opportunities including boarding, correspondence and other programs without requiring that all options be available to all students. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

The contemplation in this section of some differences in the manner of providing education sanctions some disadvantages. So long as they are not violative of equal protection, the nature and proper means of overcoming the disadvantages present questions for the legislature. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

The phrase “open to all” appears in lieu of the customary uniformity requirements. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

The word “open” in this section is an integral part of a unitary phrase “open to all.” Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Inclusion of the word “open” does not appear to impart a different meaning to the section than would “for all,” “available to all,” or “providing education to all.” Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

This section has no meaning with the word “open” deleted. Some word is needed to complete the thought of the section. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

The right to attend secondary schools in the students’ communities of residence is not mandated by the constitution, absent a valid equal protection claim. Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Notice of schools subject to closure. —

A five-day notice of which schools in a school district are subject to closure militates against appropriate preparation and poses serious obstacles to the presentation of persuasive, properly researched, and supported opposition to any closure plan. It also lessens the likelihood of a fair hearing before the school board and of the school board reaching a reasoned administrative decision. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

The importance of the educational and property interests involved in the closure of neighborhood schools in a school district requires adequate notice of the school board meeting at which the decision was made to close a specific school and five-day notice of the meeting is insufficient. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Ban on direct religious benefits. —

The Alaska Constitution is apparently unique in its express ban only on “direct” benefits. Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979).

Words “or indirect” not included in last sentence. —

The minutes of the constitutional convention reveal that the Committee on Health, Education and Welfare Provisions, in drafting the last sentence of this section, considered the words “direct” and “indirect” and felt that the words “or indirect” after the word “direct” should not be used for the reason that “they would reach out to infinity practically” and shut out the children in private schools from such free care as was being given by the state welfare department to all children. Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

Institutions covered by direct benefit clause. —

The direct benefit clause was meant to apply to all private educational institutions, including colleges and universities, as well as primary and secondary private educational institutions. Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979).

No distinction is made between “general funds” and “funds for the support of free schools.” The proscription in this section is against the appropriation of “any public money.” Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

Transportation of school children to nonpublic schools at public expense would be in contravention of the state constitution. Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

The delegates to the constitutional convention and the people who by their vote ratified the constitution left it to the supreme court to decide whether free transportation of children to nonpublic schools would constitute a “direct” benefit to the schools. If they had intended otherwise, the framers of the constitution would have followed the example set by the people of New York and New Jersey and settled the controversial issue by providing in the constitution itself for transportation of school children to nonpublic schools at state expense. Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

Tuition grant program held unconstitutional. —

Alaska’s tuition grant program, in former AS 14.40.751 14.40.806 , which awarded Alaska residents attending private colleges in Alaska an amount generally equal to the difference between the tuition charged by the student’s private college and the tuition charged by a public college in the same area, not to exceed $2,500.00 annually, and which required the student to apply the entire amount of the grant towards his or her tuition, was in its effect a direct benefit to private educational institutions and therefore violated this section. Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979).

Since the class primarily benefitted by the tuition grant program in former AS 14.40.751 14.40.806 consisted only of private colleges and their students, the public funds expended under former AS 14.40.776 constituted nothing less than a subsidy of the education received by the student at his or her private college, and the tuition grant program violated the final sentence of this section, prohibiting the payment of money from public funds “for the direct benefit of any religious or other private educational institution.” Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979).

Home rule borough requiring centralized accounting. —

A home rule borough may not require its school system to participate in centralized accounting without the statutorily required approval of the school board. Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

Issues subject to collective bargaining between teachers’ associations and school districts and boroughs. —

See Kenai Peninsula Borough Sch. Dist. v. Kenai Peninsula Educ. Ass'n, 572 P.2d 416 (Alaska 1977).

Comparison of Alaska provision with those in other states. —

See Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Analytic distinction between arguments under this section and equal protection arguments. —

See Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975).

Borough was not acting as an agent of the state in furnishing transportation of pupils. Kenai Peninsula Borough v. State, 532 P.2d 1019 (Alaska 1975).

While the state did supervise the school transportation service insofar as it related to the funding provided by it and also had certain regulations in effect pertaining to the over-all safety of the transportation system, the actual control of the transportation services was undertaken by the borough which, on its own behalf, entered into the contract with a school bus owner to furnish transportation service for specified routes. Kenai Peninsula Borough v. State, 532 P.2d 1019 (Alaska 1975).

Former Alaska State-Operated School System was state agency. —

Regardless of whether it was deemed a new principal department or a subordinate agency within the Department of Education, the former Alaska State-Operated School System was an agency of the state within the meaning of Civ. R. 4(d)(7) and (8), which require a summons and complaint in this case to be served upon the attorney general or his designee, and within the meaning of Civ. R. 12(a), which allows a state agency 40 days after service within which to answer the complaint. Alaska State-Operated Sch. Sys. v. Mueller, 536 P.2d 99 (Alaska 1975). For present provisions as to education in the unorganized borough, see AS 14.08.011 et seq. — Ed. note.

In the exercise of the powers conferred upon it by the legislature, the former Alaska State-Operated School System was performing the clearly governmental function of furnishing education to the children of Alaska in the unorganized borough. Alaska State-Operated Sch. Sys. v. Mueller, 536 P.2d 99 (Alaska 1975).

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968); Jefferson v. State, 527 P.2d 37 (Alaska 1974); Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997); State v. Ketchikan Gateway Borough, 366 P.3d 86 (Alaska 2016).

Stated in

University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975); D.R.C. v. State, 646 P.2d 252 (Alaska Ct. App. 1982).

Cited in

Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979).

Section 2. State University.

The University of Alaska is hereby established as the state university and constituted a body corporate. It shall have title to all real and personal property now or hereafter set aside for or conveyed to it. Its property shall be administered and disposed of according to law.

Opinions of attorney general. —

The University of Alaska is similar in all or most respects to other state executive agencies for purposes of budgeting and accounting; it does not have any peculiar status by virtue of being constitutionally established. February 28, 1977 Op. Att’y Gen.

The university’s budget can be made subject to line item appropriations by the legislature to the same extent that the budget for the rest of the executive branch of government is subject to line item appropriations. February 28, 1977 Op. Att’y Gen.

The legislature can make appropriations to the university using different budget units than those requested by the board of regents to the same extent that it can make appropriations for executive branch activities using different budget units than those requested by the governor. February 28, 1977 Op. Att’y Gen.

Notes to Decisions

This article is the expression of the will of the people of this state that there shall be an institution of higher learning within the scope of the constitutional mandate providing for public education. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

The University of Alaska is a constitutional corporation. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

Inherent power to sue and be sued in own name. —

As a constitutional corporation, owing its existence not to the legislature but to a charter from the ultimate sovereign, the will of the people of this state, the basic corporate power to sue and be sued in its own name would inhere in the University of Alaska regardless of the legislature’s declaration. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

University is state instrumentality. —

In its constitutional status the University of Alaska stands as the single governmental entity which was specifically created by the people to meet the statewide need for a public institution of higher education. In this light, the University must be regarded as uniquely an instrumentality of the state itself. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

Despite the degree of constitutional as well as statutory autonomy the University of Alaska clearly possesses, it must be considered to be an integral part of the state educational system mandated by the constitution. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

Statutes governing suits against state are applicable to university. —

The University of Alaska constitutes in function and character such an arm or instrumentality of the state as to bring it within the scope of those statutes which govern the conditional waiver of sovereign immunity in this state. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

The University of Alaska is an integral part of the state government and an instrumentality of the state in performing its educational function. This being so, former AS 09.50.290 , which provided that a suit against the state should be tried by the court without a jury, was applicable. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

And university’s corporate status does not militate against this conclusion. —

The corporate status of the University of Alaska under the Alaska Constitution does not militate against the conclusion of the supreme court that the university falls within the ambit of the language of AS 09.50.250 through AS 09.50.300 which governs suits against the State of Alaska. University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

Legislature is empowered to subject University of Alaska to mandate of public records disclosure statute. Carter v. Alaska Pub. Employees Ass'n, 663 P.2d 916 (Alaska 1983).

Disposal of university land. —

The legislature has the power to dispose of University of Alaska land without obtaining the approval of the university. State v. University of Alaska, 624 P.2d 807 (Alaska 1981).

The University of Alaska cannot be allocated among the principal state departments now identified under AS 44.17.005 . University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

The University of Alaska is an instrumentality of the sovereign which enjoys in some limited respects a status which is coequal rather than subordinate to that of the executive or the legislative arms of government. Therefore, it is not necessarily subject to such allocation under AS 44.15.010 (see now AS 44.17.005 ). University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

Quoted in

University of Alaska v. Chauvin, 521 P.2d 1234 (Alaska 1974).

Cited in

Southeast Alaska Conservation Council v. State, 202 P.3d 1162 (Alaska 2009).

Section 3. Board of Regents.

The University of Alaska shall be governed by a board of regents. The regents shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session. The board shall, in accordance with law, formulate policy and appoint the president of the university. He shall be the executive officer of the board.

Opinions of attorney general. —

The University of Alaska is an instrumentality of the state, and membership on its Board of Regents is necessarily an office under the state. December 27, 1976 Op. Att’y Gen.

Membership on the Board of Regents by a governor, legislator or judge offends the prohibition against dual office holding. December 27, 1976 Op. Att’y Gen.

The University of Alaska is similar in all or most respects to other state executive agencies for purposes of budgeting and accounting; it does not have any peculiar status by virtue of being constitutionally established. February 28, 1977 Op. Att’y Gen.

The university’s budget can be made subject to line item appropriations by the legislature to the same extent that the budget for the rest of the executive branch of government is subject to line item appropriations. February 28, 1977 Op. Att’y Gen.

The legislature can make appropriations to the university using different budget units than those requested by the board of regents to the same extent that it can make appropriations for executive branch activities using different budget units than those requested by necessary governor. February 28, 1977 Op. Att’y Gen.

Notes to Decisions

Legislature is empowered to subject University of Alaska to mandate of public records disclosure statute. Carter v. Alaska Pub. Employees Ass'n, 663 P.2d 916 (Alaska 1983).

Applied in

University of Alaska v. National Aircraft Leasing, 536 P.2d 121 (Alaska 1975).

Quoted in

University of Alaska v. Chauvin, 521 P.2d 1234 (Alaska 1974).

Cited in

Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985).

Section 4. Public Health.

The legislature shall provide for the promotion and protection of public health.

Cross references. —

See note to Alaska Const., art. VII, § 5.

Notes to Decisions

The right of privacy is not absolute. Gray v. State, 525 P.2d 524 (Alaska 1974).

And may be held subordinate to powers such as under this section. —

Where a compelling state interest is shown, the right of privacy may be held to be subordinate to express constitutional powers such as the authorization of the legislature to promote and protect public health and provide for the general welfare. Gray v. State, 525 P.2d 524 (Alaska 1974).

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Cited in

Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005).

Section 5. Public Welfare.

The legislature shall provide for public welfare.

Notes to Decisions

The right of privacy is not absolute. Gray v. State, 525 P.2d 524 (Alaska 1974).

And may be held subordinate to powers such as under this section. —

Where a compelling state interest is shown, the right of privacy may be held to be subordinate to express constitutional powers such as the authorization of the legislature to promote and protect public health and provide for the general welfare. Gray v. State, 525 P.2d 524 (Alaska 1974).

The enabling legislation which created the Alaska State Mortgage Association (AS 44.83.010 et seq.) is not an unconstitutional delegation of legislative power. The act’s purpose is explicitly stated and the association’s powers and limitations are provided for specifically. The complexity of the subject of secondary marketing facilities for housing mortgages precludes a more detailed delegation. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Stated in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Cited in

De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005).

Article VIII Natural Resources

Section 1. Statement of Policy.

It is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest.

Opinions of attorney general. —

Area licensing regulations have a reasonable relation to a conservation goal and therefore do not conflict with the state constitution. 1959 Alas. Op. Att'y Gen. No. 28.

AS 38.05.082 can be amended to limit the issuance of state tidelands leases for fisheries development to residents of Alaska. 1983 Alas. Op. Att'y Gen. No. 03.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Purpose of article. —

This article reflects the framers’ recognition of the importance of Alaska’s land resources and of the concomitant necessity for observance of legal safeguards in the disposal or leasing of state lands. Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967).

General value of all lands acknowledged. —

Although surface leasing may not bring as much revenue to the state as mineral leases, the state constitution expressly acknowledges as state policy the general value of all lands. Swindel v. Kelly, 499 P.2d 291 (Alaska 1972).

Proposed lease sale of coastal land. —

Plaintiffs failed to meet their burden of showing that DNR’s decision to support the state’s offer of over one million acres of state-owned on-shore and off-shore land for lease for potential petroleum exploration and development was arbitrary, unreasonable, or an abuse of discretion, or in violation of this section or AS 38.05.035 of the Alaska Land Act. Kachemak Bay Conservation Soc'y v. Department of Natural Resources, 6 P.3d 270 (Alaska 2000).

Because DNR did not impermissibly phase its review of the proposed lease sale of over one million acres of state-owned on-shore and off-shore land for lease for potential petroleum exploration and development, and because there was a reasonable basis for both DNR’s best interests finding under the Alaska Land Act, and conclusive consistency determination under the Alaska Coastal Management Plan, the agency’s actions were affirmed. Kachemak Bay Conservation Soc'y v. Department of Natural Resources, 6 P.3d 270 (Alaska 2000).

When approving the lease of state lands for oil and gas development, the director of the Department of Natural Resources was not required to make best interest findings at each phase of a project because (1) the legislature amended AS 38.05.035(e) to provide such findings were not required after an initial best interests finding, and (2) the legislature’s creation of a procedure requiring only one best interest finding did not contravene Alaska Const. art. VIII. Sullivan v. Resisting Envtl., 311 P.3d 625 (Alaska 2013).

Exploration for oil and natural gas. —

Decision of the Alaska Oil and Gas Conservation Commission did not violate Alaska Const. art. VIII, § 1 by preventing exploration when it declined to classify a producer’s well as a natural gas facility, because the producer’s requests were largely granted, and substantial evidence supported the flow rate assessments for the well, based on the Commission’s experience and testing regarding the formations into which the producer proposed to drill. Alaskan Crude Corp. v. State, 309 P.3d 1249 (Alaska 2013).

Unperfected claims to minerals. —

Absent discovery, location, and recording, no property rights exist to the minerals within an unperfected claim. Ellis v. State, Dep't of Nat. Res., 944 P.2d 491 (Alaska 1997).

Borough ordinance imposing a three percent tax on the sale of all raw fish caught within the borough was a sales tax, not merely a measure for a severance tax on a natural resource. Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska 1978).

Applied in

Brady v. State, 965 P.2d 1 (Alaska 1998); Alaska Trademark Shellfish, LLC v. State, 172 P.3d 764 (Alaska 2007).

Quoted in

Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982); Baxley v. State, 958 P.2d 422 (Alaska 1998).

Cited in

De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); Usibelli Coal Mine, Inc. v. State, Dep't of Nat. Res., 921 P.2d 1134 (Alaska 1996); Ninilchik Traditional Council v. Noah, 928 P.2d 1206 (Alaska 1996); .

Section 2. General Authority.

The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.

Opinions of attorney general. —

Reading AS 46.40.070(b) as vesting local officials with complete control over policy formulation would probably render the Alaska Coastal Management Act unconstitutional under Alaska Const., art. VIII, § 2. May 12, 1980 Op. Att’y Gen.

AS 38.05.082 can be amended to limit the issuance of state tidelands leases for fisheries development to residents of Alaska. 1983 Alas. Op. Att'y Gen. No. 03.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

This section is not inconsistent with federal privileges and immunities clause. —

This section, stating that Alaska’s natural resources shall be used and developed in ways that will benefit Alaska’s people, is not inconsistent with the federal privileges and immunities clause. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

The natural resources of Alaska “belong” to Alaska and to Alaskans in a way that, in the federal system, Alaska’s society and economy in general do not. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

The state has the right to direct the use of its natural resources, including fish and game. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Regulations by the board of game were constitutional. —

The regulations by the board of game that designated the Noatak area and Nenana area as controlled use areas were constitutional, were within the authority of the board, and were neither arbitrary nor unreasonable. Interior Alaska Airboat Ass'n v. Bd. of Game, 18 P.3d 686 (Alaska 2001).

Appropriations vetoes. —

That the governor’s appropriations veto under article II is limited to money bills is suggested by Alaska Const., art. VIII, which grants broad powers over land to the legislature. A number of sections of art. VIII, such as this one, grant the legislature a land-disposal power that is not consistent with the enhanced appropriations veto power which the governor has over appropriations. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Proposed lease sale of coastal land. —

After the director of the Department of Natural Resources (DNR) made best interest findings when approving the lease of state lands for an oil and gas development project, the state was required to consider the project’s cumulative impacts at the project’s later phases because, (1) at the lease sale phase, DNR could not assess if the maximum benefit of the people of Alaska would be achieved throughout the course of the project since many potential impacts were unknown, so the impacts had to be considered at later phases, and (2) if DNR did not consider cumulative impacts and give timely notice to the public of its assessment, DNR would violate its duty to take a continuing hard look at new information to ensure development of state resources “by making them available for maximum use consistent with the public interest,” under Alaska Const. art. VIII, § 1. Sullivan v. Resisting Envtl., 311 P.3d 625 (Alaska 2013).

General value of all lands acknowledged. —

Although surface leasing may not bring as much revenue to the state as mineral leases, the state constitution expressly acknowledges as state policy the general value of all lands. Swindel v. Kelly, 499 P.2d 291 (Alaska 1972).

Disposal of University of Alaska land. —

The legislature has the power to dispose of University of Alaska land without obtaining the approval of the university. State v. University of Alaska, 624 P.2d 807 (Alaska 1981).

The fish and game resources are permitted to be harvested, but at the same time must be conserved to avoid depletion and extinction. A registered guide, more than any other game hunter, should be expected to realize this concept and direct his actions and the actions of the hunters he guides so as to accomplish the balance the Board of Fish and Game is attempting to reach in harmonizing reasonable harvesting of the game resources and their conservation. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Fish allocative regulation upheld. —

Regulation promulgated by the Alaska Board of Fisheries allocating the number of chinook (king) salmon that may be harvested by commercial seiners and gillnetters, commercial trollers, and sport fishers in southeast Alaska, did not violate any of the policies contained in Article VIII of the Alaska Constitution. Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314 (Alaska 1994).

When the Commissioner of the Alaska Department of Fish and Game limited time for, and then closed, a set net fishery while also increasing drift net fishery time, the sustained yield clause was not violated because the order controlled utilization of the resource to prevent the resource’s exploitation, destruction, or neglect. Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, 357 P.3d 789 (Alaska 2015).

Recognition of user groups defined by use of a particular means or method of access would not be in accordance with the views of the framers of Alaska’s constitution and would needlessly impair the board of fisheries’ power and duty to control utilization, development and conservation of fisheries resources for maximum public benefit. Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992).

State’s power to eliminate role of hunting guides. —

The state’s power over natural resources is such that it could entirely eliminate the role of hunting guides, and no problem of due process would arise. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

Violation of licensing statute by guide. —

If a guide violates the licensing statute and regulations of the Board of Fish and Game, he has demonstrated his failure to accomplish the joint objectives of reasonable harvesting of the game resources and their conservation, and, therefore, shows his incompetence to continue in the occupation of guiding hunters of Alaska’s game resources. Herscher v. State, Dep't of Commerce, 568 P.2d 996 (Alaska 1977).

No residency requirement in section. —

This section is not limited to those of Alaska’s people who have been here for at least 12 months. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977), rev'd, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (U.S. 1978).

Quoted in

Kenai Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897 (Alaska 1981); State v. Anthony, 810 P.2d 155 (Alaska 1991); Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996); Baxley v. State, 958 P.2d 422 (Alaska 1998); State v. Greenpeace, Inc., 96 P.3d 1056 (Alaska 2004); Bragg v. Matanuska-Susitna Borough, 192 P.3d 982 (Alaska 2008); State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010); Mallott v. Stand for Salmon (Alaska Aug. 8, 2018).

Cited in

De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967); State v. Tanana Valley Sportsmen's Ass'n, 583 P.2d 854 (Alaska 1978); Frank v. State, 604 P.2d 1068 (Alaska 1979); Usibelli Coal Mine, Inc. v. State, Dep't of Nat. Res., 921 P.2d 1134 (Alaska 1996); Ninilchik Traditional Council v. Noah, 928 P.2d 1206 (Alaska 1996); Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009).

Section 3. Common Use.

Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Applicability. —

The right to lead subsistence lifestyles is not limited to Alaska Natives; the benefits of subsistence living are shared by all Alaskans and class of Alaska Natives could not bring a public nuisance action based on interference with subsistence lifestyles because they could show no special injury different in kind from that suffered by the general public. Alaska Native Class v. Exxon Corp. (In re Exxon Valdez), 104 F.3d 1196 (9th Cir. Alaska 1997).

Applicability of Submerged Lands Act. —

Pursuant to the Alaska Statehood Act, the Submerged Lands Act of 1953 applies to Alaska. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

The state owns or controls the land beneath navigable waters. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Under federal law ownership and control of the land under navigable waters is confirmed in the state. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

People’s right to use of non-navigable waters. —

The people of the state have the right to use the water on non-navigable rivers and streams. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Construction of common use clause. —

The common use clause of Article VIII does not grant the legislature exclusive power to make laws dealing with natural resources management. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

The common use clause does not obligate the state to guarantee access to a natural resource by a person’s preferred means or method. Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992).

Scope of public trust analogy. —

Article VIII does not explicitly create a public trust; rather, the analogy of a public trust has been used to describe the nature of the state’s duties with respect to wildlife and other natural resources meant for common use. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

The ownership of ground and surface waters is to be determined according to state law. Under the Alaska Constitution and state law the right to use such waterways is placed in the people of the state. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Groundwater is not the “owned property” of an insured and as such does not fall within the “owned property” exclusion of a policy. MAPCO Alaska Petro., Inc. v. Central Nat'l Ins. Co., 784 F. Supp. 1454 (D. Alaska 1991).

Groundwater was not the “owned property” of the oil refinery contaminating it through spills and leaks and as such did not fall within the “owned property” exclusion of insurance policies issued to the refinery. MAPCO Alaska Petro., Inc. v. Central Nat'l Ins. Co., 784 F. Supp. 1454 (D. Alaska 1991).

Contamination of groundwater as property damage. —

Contamination of groundwater qualifies as property damage and as such was covered under an oil refinery’s insurance policies. MAPCO Alaska Petro., Inc. v. Central Nat'l Ins. Co., 784 F. Supp. 1454 (D. Alaska 1991).

Continuous linear shoreline easement. —

By specifically stating that the reservation of easements along major waterways was to be “periodic” Congress clearly did not evince an intent to allow a continuous linear shoreline easement. The court does not hold that a continuous easement along portions of the coastline may never be reserved. Such a reservation, however, must be necessary to provide public use and access to other public lands which may, of course, include the lands confirmed to the state pursuant to the Submerged Lands Act. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Private tideland patent holders cannot exclude public. —

Tidelands conveyed to private parties pursuant to class I preference rights under AS 38.05.820 were conveyed subject to the public’s right to utilize those tidelands for purposes of navigation, commerce and fishery. While patent holders are free to make such use of their property as will not unreasonably interfere with these continuing public easements, they are prohibited from any general attempt to exclude the public from the property by virtue of their title. CWC Fisheries v. Bunker, 755 P.2d 1115 (Alaska 1988).

Statute granting a preference to rural residents to take fish and game for subsistence purposes violated this section. McDowell v. State, 785 P.2d 1 (Alaska 1989).

Community harvest system for moose and caribou authorized. —

Community harvest permit system for moose and caribou did not violate Alaska Const. art. VIII, §§ 3, 15, and 17, where, although a requirement to join a group may have been inconvenient for some, inconvenience was not a bar to eligibility to participate. Alaska Fish & Wildlife Conservation Fund v. State, 347 P.3d 97 (Alaska 2015).

Community harvest permit condition applies equally to all Alaskans, does not meaningfully limit admission to the user group, and does not discriminate between user groups; all Alaskans are eligible for a community harvest permit; the only requirements are finding a group of other hunters with whom to collaborate and complying with the “applicable customary and traditional use pattern,” any inconvenience these requirements may pose does not implicate constitutional rights. Manning v. State, 420 P.3d 1270 (Alaska 2018).

Salmon hatcheries. —

Although salmon are subject to the common use clause of the state Constitution while in the natural waters of the state, by its own terms the common use clause does not apply to hatchery fish in terminal areas. O'Callaghan v. Rue, 996 P.2d 88 (Alaska 2000).

Excusable neglect. —

Evidence did not support a claim of excusable neglect under Alaska R. Civ. P. 60(b)(1) in a probate proceeding as to parties who claimed that they reasonably failed to comprehend the extent of their participation or that they would be bound by the results of a trial. Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009), overruled in part, Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Protection of waters as public asset. —

An initiative (07WTR3) related to protection of the statewide interest in water quality by limiting the discharge or release of certain toxic pollutants. Because the state has a property-like interest in the waters of the state, and because the waters of the state play a revenue-raising function for the state, the waters of the state are a public asset. Because the initiative sought only to preclude discharges of toxic chemicals and other pollutants harmful to humans and salmon, it did not create an appropriation limiting the legislature’s authority, nor did it constitute special legislation. Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009), overruled in part, Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Fishery regulation upheld. —

A regulation allocating harvest levels of sockeye salmon did not violate either this section or Article VIII, § 17 of the Alaska Constitution, as the regulation was not arbitrary and capricious, did not create an exclusive right, and the affected fisheries were not “similarly situated”. The regulation reflected an allocation decision authorized under Article VIII, § 4 which the Board of Fisheries must necessarily make between users involved in different fisheries. Gilbert v. Dept. of Fish & Game, Bd. of Fisheries, 803 P.2d 391 (Alaska 1990).

5 AAC 99.010(b) does not implicate the equal access, uniform application, or equal protection clauses of either the Alaska or United States Constitutions. The regulation affects the classification of fisheries, but does not subject any user group to disparate treatment, and it does not affect any individual’s ability to obtain a subsistence permit or to utilize that permit in a subsistence area. It merely provides criteria to determine if the use patterns in that specific area support a finding of customary and traditional uses; this regulation does not affect any user’s admission to a user group and none of the criteria are based on residency. Citizens do not have a constitutional right to have a subsistence fishery in their preferred area. Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game, 289 P.3d 903 (Alaska 2012).

Management of caribou hunt. —

Superior court properly granted the Alaska Board of Game summary judgment upholding its regulations managing caribou hunting because the Board’s “amount reasonably necessary for subsistence” calculation did not implicate or violate the equal access, uniform application, or equal protection clauses of the Alaska Constitution; the Board’s subsistence definition applied equally to all of the State’s citizens. Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game, 289 P.3d 903 (Alaska 2012).

Game ratio regulation unconstitutional. —

The game ratio formula described in 5 AAC 92.070(b)(1) is a structurally infirm and ultimately inaccurate method of measuring subsistence hunting permit applicants’ access to alternative food sources; it is not closely related to the state’s interest in ensuring that Alaskans who need to engage in subsistence hunting are able to do so, and, as such, the regulation violates §§ 3, 15, and 17 of article VIII of the Alaska Constitution. State v. Manning, 161 P.3d 1215 (Alaska 2007).

Limited entry system in fisheries authorized. —

The purpose of the 1972 amendment (which added the second sentence) to Alaska Const., art. VIII, § 15 was to grant the state the power to impose a limited entry system in any fishery, notwithstanding any state constitutional provisions otherwise prohibiting such a system. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).

A superexclusive use regulation prohibiting fishermen who operate in one of the superexclusive fisheries from participating in any other superexclusive fishery reflects an allocation decision which is both necessary and authorized under Article VIII, § 4 of the Alaska Constitution, and does not violate any of the Article VIII clauses prohibiting exclusive or special privileges to take fish and wildlife. State v. Herbert, 803 P.2d 863 (Alaska 1990).

But are not property under takings analysis. —

Limited entry fishing permits are not property for purposes of a takings analysis because a contrary conclusion would violate Alaska Const., art. VIII, § 3 or Alaska Const., art. VIII, § 15. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Regulation banning fish spotting in Bristol Bay was not constitutionally infirm but constituted a permissible limitation on the type traditionally imposed by the state on the means and methods which citizens may employ as they utilize fishery resources. This regulation restricts means and methods of access in a manner which applies equally to all citizens. Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992).

Prohibiting use of wolf trap snares. —

Since the legislature does not have exclusive law-making powers over natural resources issues merely because of the state’s management role over wildlife set forth in Article VIII of the Alaska Constitution, the issue of prohibiting the use of snares to trap wolves is not clearly inapplicable to the initiative process under Article XII. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Assignment of exclusive guide areas. —

Former AS 08.54.040(a)(7) and AS 08.54.195 and the regulations of the Guide Board permitting the assignment of exclusive guide areas were in contravention of this section. Owsichek v. Guide Licensing & Control Bd., 763 P.2d 488 (Alaska 1988).

Constitutionality of ch. 186, SLA 1968. —

See Bazanich v. Reetz, 297 F. Supp. 300 (D. Alaska 1969), vacated, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (U.S. 1970); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (U.S. 1970).

Applied in

State v. Morry, 836 P.2d 358 (Alaska 1992); Mesiar v. Heckman, 964 P.2d 445 (Alaska 1998).

Quoted in

Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256 (Alaska 1988); Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996); Bragg v. Matanuska-Susitna Borough, 192 P.3d 982 (Alaska 2008).

Cited in

State v. Tanana Valley Sportsmen's Ass'n, 583 P.2d 854 (Alaska 1978); Frank v. State, 604 P.2d 1068 (Alaska 1979); Alaska Trademark Shellfish, LLC v. State, 91 P.3d 953 (Alaska 2004).

Section 4. Sustained Yield.

Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.

Opinions of attorney general. —

Area licensing regulations have relation to the subject of fish conservation in that they are designed to enable the Department of Fish and Game to control the extent of fishing in various areas of Alaska, and thereby to meet the mandate of Alaska Const., art. VIII, § 4, to maintain our fish resources on the sustained yield principle. 1959 Alas. Op. Att'y Gen. No. 28.

Notes to Decisions

Accordance with statutory definitions. —

The “sustained yield principle” as used in the constitution accords with the definition set forth in AS 38.04.910 ; and the added language in former AS 41.17.950 (15) [now AS 41.17.950 (27)] that it “does not require that timber be harvested in a nondeclining yield basis over a rotation period” should be read as permitting timber cutting at a level that cannot be sustained over a forest rotation period only in unusual circumstances. Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544 (Alaska 1983).

Construction of common use clause. —

The common use clause of Article VIII does not grant the legislature exclusive power to make laws dealing with natural resources management. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Scope of public trust analogy. —

Article VIII does not explicitly create a public trust; rather, the analogy of a public trust has been used to describe the nature of the state’s duties with respect to wildlife and other natural resources meant for common use. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Prohibiting use of wolf trap snares. —

Since the legislature does not have exclusive law-making powers over natural resources issues merely because of the state’s management role over wildlife set forth in Article VIII of the Alaska Constitution, the issue of prohibiting the use of snares to trap wolves is not clearly inapplicable to the initiative process under Article XII. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Allocation regulation upheld. —

A superexclusive use regulation prohibiting fishermen who operate in one of the superexclusive fisheries from participating in any other superexclusive fishery reflects an allocation decision which is both necessary and authorized under this section, and does not violate any of the Article VIII clauses prohibiting exclusive or special privileges to take fish and wildlife. State v. Herbert, 803 P.2d 863 (Alaska 1990).

A regulation allocating harvest levels of sockeye salmon did not violate either Article VIII, § 3 or Article VIII, § 17 of the Alaska Constitution, as the regulation was not arbitrary and capricious, did not create an exclusive right, and the affected fisheries were not “similarly situated”. The regulation reflected an allocation decision authorized under this section, which the Board of Fisheries must necessarily make between users involved in different fisheries. Gilbert v. Dept. of Fish & Game, Bd. of Fisheries, 803 P.2d 391 (Alaska 1990).

Regulation promulgated by the Alaska Board of Fisheries allocating the number of chinook (king) salmon that may be harvested by commercial seiners and gillnetters, commercial trollers, and sport fishers in southeast Alaska, did not violate any of the policies contained in Article VIII of the Alaska Constitution. Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314 (Alaska 1994).

Moose management regulation upheld. —

In affirming the grant of summary judgment to the state in a management team’s challenge to 5 AAC 85.045, the court determined that the regulation violated neither the sustained yield principle of Alaska Const. art. VIII, § 4, nor AS 16.05.255 and 16.05.258 ; the Board of Game acted within its discretion in adopting the regulation that allowed for the issuance of “up to” 400 hunting permits in a controlled use area because creating a controlled use area did not necessarily amount to designating a relevant animal population for management purposes, and it was reasonable not to manage moose in the region as a distinct game population. Koyukuk River Basin Moose Co-Management v. Bd. of Game, 76 P.3d 383 (Alaska 2003).

No requirement for predetermined formula. —

The plain language of the sustained yield clause requires resource managers to apply sustained yield principles but does not mandate the use of a predetermined formula, whether quantitative or qualitative. Native Village of Elim v. State, 990 P.2d 1 (Alaska 1999).

To require the use of a predetermined formula under the sustained yield clause would consume an amount of time, money, and energy wholly disproportionate to potential benefits, and would be a counterproductive use of resources, limiting the in-season flexibility that fisheries management requires. Native Village of Elim v. State, 990 P.2d 1 (Alaska 1999).

Duty to apply principles of sustained yield. —

Alaska Board of Game had both a constitutional and statutory duty to apply principles of sustained yield when it established predator control plans, Alaska Const. art. VIII, § 4 and AS 16.05.255 , but appellants did not show that the Board’s 2006 plans failed to comply with sustained yield principles. West v. State, 248 P.3d 689 (Alaska 2010).

When the Commissioner of the Alaska Department of Fish and Game limited time for, and then closed, a set net fishery while also increasing drift net fishery time, the uniform application clause was not violated because the order was justified in light of an historically low Kenai River, Alaska, king salmon run and the fact that set netters incidentally harvested substantially more king salmon than drift netters. Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, 357 P.3d 789 (Alaska 2015).

Standard of review. —

Because the Board of Fisheries and Peninsula Marketing Association must balance economic, ecological, cultural, international, and other policy concerns when it makes decisions about the state’s fisheries and must accommodate all those legitimate interests in the face of substantial scientific uncertainty, the courts will not substitute their judgment for that of the board. Native Village of Elim v. State, 990 P.2d 1 (Alaska 1999).

Applied in

Brady v. State, 965 P.2d 1 (Alaska 1998).

Quoted in

Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996); Phillip v. State, 347 P.3d 128 (Alaska Ct. App. 2015).

Cited in

De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); State v. Tanana Valley Sportsmen's Ass'n, 583 P.2d 854 (Alaska 1978); Frank v. State, 604 P.2d 1068 (Alaska 1979); State v. Manning, 161 P.3d 1215 (Alaska 2007); State v. Nondalton Tribal Council, 268 P.3d 293 (Alaska 2012); Manning v. Dep't of Fish & Game, 355 P.3d 530 (Alaska 2015).

Section 5. Facilities and Improvements.

The legislature may provide for facilities, improvements, and services to assure greater utilization, development, reclamation, and settlement of lands, and to assure fuller utilization and development of the fisheries, wildlife, and waters.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Quoted in

State v. Alex, 646 P.2d 203 (Alaska 1982).

Cited in

De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Section 6. State Public Domain.

Lands and interests therein, including submerged and tidal lands, possessed or acquired by the State, and not used or intended exclusively for governmental purposes, constitute the state public domain. The legislature shall provide for the selection of lands granted to the State by the United States, and for the administration of the state public domain.

Notes to Decisions

Quoted in

State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Cited in

Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967); Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Section 7. Special Purpose Sites.

The legislature may provide for the acquisition of sites, objects, and areas of natural beauty or of historic, cultural, recreational, or scientific value. It may reserve them from the public domain and provide for their administration and preservation for the use, enjoyment, and welfare of the people.

Cross references. —

For state land and water restricted to use as public recreation areas and state parks, see AS 41.21; for game refuges and sanctuaries, range areas, and habitat areas, see AS 16.20.

Notes to Decisions

Disposal of University of Alaska land. —

The legislature has the power to dispose of University of Alaska land without obtaining the approval of the university. State v. University of Alaska, 624 P.2d 807 (Alaska 1981).

State park permits. —

State park’s issuance of special permits for all-terrain vehicle use to private property owners on or near a certain lake violated the Alaska Constitution because the special use permits were revocable only for cause and, as such, the interests granted by the special use permits were easements, which constituted an impermissible disposal of state park land. SOP, Inc. v. Dep't of Natural Res., 310 P.3d 962 (Alaska 2013).

Section 8. Leases.

The legislature may provide for the leasing of, and the issuance of permits for exploration of, any part of the public domain or interest therein, subject to reasonable concurrent uses. Leases and permits shall provide, among other conditions, for payment by the party at fault for damage or injury arising from noncompliance with terms governing concurrent use, and for forfeiture in the event of breach of conditions.

Cross references. —

For statutory provisions implementing this section, see AS 38.05.

Notes to Decisions

Quoted in

State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Stated in

Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982).

Cited in

Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967); Ninilchik Traditional Council v. Noah, 928 P.2d 1206 (Alaska 1996).

Section 9. Sales and Grants.

Subject to the provisions of this section, the legislature may provide for the sale or grant of state lands, or interests therein, and establish sales procedures. All sales or grants shall contain such reservations to the State of all resources as may be required by Congress or the State and shall provide for access to these resources. Reservation of access shall not unnecessarily impair the owners’ use, prevent the control of trespass, or preclude compensation for damages.

Cross references. —

For statutory provisions implementing this section, see AS 38.05.

Notes to Decisions

Alienation of mineral rights. —

This section and Alaska Const., art. XII, § 13 do not contain constitutional restraints on alienation of mineral rights. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

This section and Alaska Const., art. XII, § 13 merely leave decisions as to restraints on alienation of mineral rights as to whether to require such reservations to Congress and the state’s legislature. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Section expresses advance consent to federal statehood conditions. —

Alaska Const., art. XII, § 13 is similar to this section in expressing advance consent to terms or conditions which might be required by Congress as a condition to admission of Alaska to the Union. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

All that was required to release the restrictions required by Congress was congressional consent. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

And state constitutional amendment is not mandated. —

After Congress has given its consent to a change in terms, a state constitutional amendment is not mandated to alter the compact. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

No impediment to authorized exchange of land. —

This section and Alaska Const., art. XII, § 13 impose no impediment to an exchange of land authorized by Congress and the state legislature even though the exchange involves a conveyance of mineral rights by the state. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Appropriations vetoes. —

That the governor’s appropriations veto under article II is limited to money bills is suggested by Alaska Const., art. VIII, which grants broad powers over land to the legislature. A number of sections of art. VIII, such as this one, grant the legislature a land-disposal power that is not consistent with the enhanced appropriations veto power which the governor has over appropriations. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Chapter 19, SLA 1976, is constitutional. —

Chapter 19, SLA 1976, which authorized a three-way exchange of land between the state of Alaska, the United States government and a regional corporation of Alaska natives, which exchange was to pass all of the state’s rights in the land including the mineral subsurface estate, was constitutional since there is no constitutional prohibition against alienation of mineral rights which precludes this land exchange. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Once congressional consent to release the restrictions required by Congress was secured, the Alaska legislature, in agreeing to the disposition of the land and mineral rights by ch. 19, SLA 1976, was not violating any specific provision of the Alaska Constitution. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Cited in

Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982); Hayes v. A.J. Assocs., 960 P.2d 556 (Alaska 1998); Kohlhaas v. State, 223 P.3d 105 (Alaska 2010); State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Section 10. Public Notice.

No disposals or leases of state lands, or interests therein, shall be made without prior public notice and other safeguards of the public interest as may be prescribed by law.

Editor’s notes. —

The amendment proposed by SJR 45 am H (1976) (public notice of land disposals) was rejected by voters.

Notes to Decisions

This section does not impose a 30-day limitation on actions brought under it. Moore v. State, 553 P.2d 8 (Alaska 1976).

Authority to reject state land selection application. —

The commissioner of natural resources had the authority to reject a state land selection application under former AS 29.18.190 and 29.18.200 on the grounds that it was inconsistent with the best interests of the state. North Slope Borough v. LeResche, 581 P.2d 1112 (Alaska 1978).

Enactment of Alaska Land Act. —

In accordance with this section, the legislature enacted the Alaska Land Act (AS 38.05.005 —38.05.370) (renumbered as AS 38.05.005 38.05.990 ). Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967); Moore v. State, 553 P.2d 8 (Alaska 1976).

The Alaska Land Act, AS 38.05, was enacted in accordance with this section. North Slope Borough v. LeResche, 581 P.2d 1112 (Alaska 1978).

Former AS 38.05.305 , providing for review of proposed land use, was enacted pursuant to this section. State v. Aleut Corp., 541 P.2d 730 (Alaska 1975).

Judicial review of leasing procedures under Alaska Land Act. —

The judicial review portions of the Administrative Procedure Act (AS 44.62.010 —44.62.650) govern leasing procedures conducted by the division of lands under the Alaska Land Act (AS 38.05.005 —38.05.370) (renumbered as AS 38.05.005 38.05.990 ). Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967).

Determinations of the director of the division of lands and the commissioner of natural resources made under AS 38.05.075 of the Alaska Land Act, and regulations promulgated thereunder, are subject to judicial review. This conclusion is reached in light of the text of this section which prohibits leasing of state-owned lands unless made pursuant to public notice and other limitations imposed by law. Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967).

It is consonant with the intent of the constitution and with legislative intent that an aggrieved bidder, under AS 38.05.075 , has standing to obtain judicial review of alleged violations of his protected interest, as well as to vindicate the public interest in the lawful leasing of Alaska’s lands. Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967).

Modification of oil and gas leases. —

Passage of a legislative enactment approving and giving effect to modifications of particular oil and gas leases did not violate this section where the public had ample opportunity to comment on the proposed lease amendments before the legislature authorized any binding changes. Baxley v. State, 958 P.2d 422 (Alaska 1998).

Adjudicatory provisions of the Alaska Administrative Procedure Act (AS 44.62) do not apply to the termination of grazing leases by the division of lands. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Terminating state grazing leases without affording the lessee notice and hearing would undermine both the policy evinced by this article and the explicit due process guarantee provided by Alaska Const., art. I, § 7. McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

State park permits. —

Because Nancy Lake State Recreation Area (Park) special park use permits that were revocable only for cause conveyed easements, not licenses, and because the granting of easements was an impermissible disposal of state park land, the superior court’s grant of summary judgment to the Park was reversed; the permits created easements because the Park could not revoke the permits at will and was prohibited from disposing of the property. SOP, Inc. v. State, Dep't of Natural Res., — P.3d — (Alaska July 19, 2013), op. withdrawn, sub. op., 310 P.3d 962 (Alaska 2013).

State park’s issuance of special permits for all-terrain vehicle use to private property owners on or near a certain lake violated the Alaska Constitution because the special use permits were revocable only for cause and, as such, the interests granted by the special use permits were easements, which constituted an impermissible disposal of state park land. SOP, Inc. v. Dep't of Natural Res., 310 P.3d 962 (Alaska 2013).

Procedure required by due process prior to termination of grazing lease. —

See McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353 (Alaska 1974).

Quoted in

State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010); Gillis v. Aleutians E. Borough, 258 P.3d 118 (Alaska 2011).

Stated in

Messerli v. Department of Natural Resources, 768 P.2d 1112 (Alaska 1989).

Cited in

Laverty v. State R.R. Corp., 13 P.3d 725 (Alaska 2000).

Section 11. Mineral Rights.

Discovery and appropriation shall be the basis for establishing a right in those minerals reserved to the State which, upon the date of ratification of this constitution by the people of Alaska, were subject to location under the federal mining laws. Prior discovery, location, and filing, as prescribed by law, shall establish a prior right to these minerals and also a prior right to permits, leases, and transferable licenses for their extraction. Continuation of these rights shall depend upon the performance of annual labor, or the payment of fees, rents, or royalties, or upon other requirements as may be prescribed by law. Surface uses of land by a mineral claimant shall be limited to those necessary for the extraction or basic processing of the mineral deposits, or for both. Discovery and appropriation shall initiate a right, subject to further requirements of law, to patent of mineral lands if authorized by the State and not prohibited by Congress. The provisions of this section shall apply to all other minerals reserved to the State which by law are declared subject to appropriation.

Cross references. —

For statutory provisions regarding mining rights, see AS 38.05.185 — 38.05.283.

Notes to Decisions

Abandonment of claims as matter of law. —

Regulations requiring payment of cash in lieu of labor by a specific date, and deeming claims abandoned if payment was not made by that date, were consistent with AS 38.05.210 , were reasonable and not arbitrary, and were consistent with this section. Chalovich v. State, 104 P.3d 125 (Alaska 2004).

State’s rights where surface estate conveyed to third party. —

The state’s mineral interest in lands on which the surface estate has been conveyed to a third party is “state land” subject to the location of state mining claims in the same manner as on lands owned entirely by the state. Hayes v. A.J. Assocs., 960 P.2d 556 (Alaska 1998).

Mining rights of successor locator. —

There was no “taking” of mining rights within the meaning of Alaska Const. art. I, § 18, where ongoing litigation and injunction constituted “existing claims” under AS 38.05.275 , preventing a successor locator from mining the claim. Beluga Mining Co. v. Department of Natural Resources, 973 P.2d 570 (Alaska 1999).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010); State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Section 12. Mineral Leases and Permits.

The legislature shall provide for the issuance, types and terms of leases for coal, oil, gas, oil shale, sodium, phosphate, potash, sulfur, pumice, and other minerals as may be prescribed by law. Leases and permits giving the exclusive right of exploration for these minerals for specific periods and areas, subject to reasonable concurrent exploration as to different classes of minerals, may be authorized by law. Like leases and permits giving the exclusive right of prospecting by geophysical, geochemical, and similar methods for all minerals may also be authorized by law.

Cross references. —

For statutory provisions relating to leasing of mineral land, see AS 38.05.135 38.05.184 .

Notes to Decisions

Appropriations vetoes. —

That the governor’s appropriations veto under article II is limited to money bills is suggested by Alaska Const., art. VIII, which grants broad powers over land to the legislature. A number of sections of art. VIII, such as this one, grant the legislature a land-disposal power that is not consistent with the enhanced appropriations veto power which the governor has over appropriations. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Cited in

Hayes v. A.J. Assocs., 960 P.2d 556 (Alaska 1998).

Section 13. Water Rights.

All surface and subsurface waters reserved to the people for common use, except mineral and medicinal waters, are subject to appropriation. Priority of appropriation shall give prior right. Except for public water supply, an appropriation of water shall be limited to stated purposes and subject to preferences among beneficial uses, concurrent or otherwise, as prescribed by law, and to the general reservation of fish and wildlife.

Cross references. —

See note to Alaska Const., art. VIII, § 15.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Quoted in

State v. Greenpeace, Inc., 96 P.3d 1056 (Alaska 2004).

Cited in

State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Section 14. Access to Navigable Waters.

Free access to the navigable or public waters of the State, as defined by the legislature, shall not be denied any citizen of the United States or resident of the State, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes.

Opinions of attorney general. —

The owner of the uplands has been stated to have the right of access for the purpose of navigation, but no right of possession of the land below high water mark as against another. 1959 Alas. Op. Att'y Gen. No. 1.

In Dalton v. Hazelet , 182 F. 561 (9th Cir. 1910), it was recognized that the right of free and unobstructed access may be exercised by means of a wharf or other structure over shoal water from the upland property to deep water. 1959 Alas. Op. Att'y Gen. No. 1.

The mere physical passage is not the only right involved in the right of access. The upland owner has the right to use the foreshore in such manner as is necessary for the complete enjoyment of his right. 1959 Alas. Op. Att'y Gen. No. 1.

Any use of tidelands in such a manner as to deny the upland owner access to the navigable waters would be actionable. 1959 Alas. Op. Att'y Gen. No. 1.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Regulations by the board of game were constitutional. —

The regulations by the board of game that designated the Noatak area and Nenana area as controlled use areas were constitutional, were within the authority of the board, and were neither arbitrary nor unreasonable. Interior Alaska Airboat Ass'n v. Bd. of Game, 18 P.3d 686 (Alaska 2001).

The Alaska Constitution allows the state to take riparian or littoral property rights for “beneficial or public uses” other than in aid of water navigation. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Applied in

Offshore Sys.-Kenai v. State, 282 P.3d 348 (Alaska 2012).

Quoted in

State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

Cited in

Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Section 15. No Exclusive Right of Fishery.

No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State. This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State.

Cross references. —

For provisions relating to the limitation of entry into the fisheries of the state, see AS 16.43.

Effect of amendments. —

The amendment effective October 14, 1972 (7th Legislature’s HCS CSSJR 10 (1971)) added the last sentence.

Opinions of attorney general. —

This section was derived from the White Act, former 48 U.S.C. §§ 221, 222. 1961 Alas. Op. Att'y Gen. No. 3.

Under the language of the White Act (former 48 U.S.C. § 222) the Secretary of Interior was prohibited from granting any exclusive or several right of fishery in favor of the Natives on the Karluk River on Kodiak Island. The court held that the prohibition against granting an exclusive right of fishery applied to commercial fishing by natives equally with fishing companies, and that the secretary could not grant to the occupants of an Indian rservation the privilege of exclusive commercial fishing rights. 190 Op. Att’y Gen. No. 9, citing Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S. Ct. 968, 93 L. Ed. 1231 (U.S. 1949).

AS 38.05.082 , which authorizes shore fishery leases, does not create an exclusive right of fishery and therefore is not unconstitutional under this section. 1983 Alas. Op. Att'y Gen. No. 03.

AS 38.05.082 can be amended to limit the issuance of state tidelands leases for fisheries development to residents of Alaska. 1983 Alas. Op. Att'y Gen. No. 03.

Notes to Decisions

Applicability. —

The right to lead subsistence lifestyles is not limited to Alaska Natives; the benefits of subsistence living are shared by all Alaskans and class of Alaska Natives could not bring a public nuisance action based on interference with subsistence lifestyles because they could show no special injury different in kind from that suffered by the general public. Alaska Native Class v. Exxon Corp. (In re Exxon Valdez), 104 F.3d 1196 (9th Cir. Alaska 1997).

The first judicial application of this constitutional provision should properly be by an Alaska court. Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (U.S. 1970).

The White Act merely expressed the common law in prohibition against exclusive fishing rights. Grimes Packing Co. v. Hynes, 67 F. Supp. 43, 11 Alaska 154 (D. Alaska 1946), aff'd, 165 F.2d 323, 11 Alaska 564 (9th Cir. Alaska 1947).

It did not permit a monopoly of fishing in Indian citizens as a conservation measure. Hynes v. Grimes Packing Co., 165 F.2d 323, 11 Alaska 564 (9th Cir. Alaska 1947), vacated, 337 U.S. 86, 69 S. Ct. 968, 93 L. Ed. 1231 (U.S. 1949).

Limited entry fishing permits are not property for purposes of a takings analysis because a contrary conclusion would violate Alaska Const., art. VIII, § 3 or Alaska Const., art. VIII, § 15. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Community harvest system for moose and caribou authorized. —

Community harvest permit system for moose and caribou did not violate Alaska Const. art. VIII, §§ 3, 15, and 17, where, although a requirement to join a group may have been inconvenient for some, inconvenience was not a bar to eligibility to participate. Alaska Fish & Wildlife Conservation Fund v. State, 347 P.3d 97 (Alaska 2015).

Community harvest permit condition applies equally to all Alaskans, does not meaningfully limit admission to the user group, and does not discriminate between user groups; all Alaskans are eligible for a community harvest permit; the only requirements are finding a group of other hunters with whom to collaborate and complying with the “applicable customary and traditional use pattern,” and any inconvenience these requirements may pose does not implicate constitutional rights. Manning v. State, 420 P.3d 1270 (Alaska 2018).

The purpose of the 1972 amendment, which added the second sentence to this section, was to grant the state the power to impose a limited entry system in any fishery, notwithstanding any state constitutional provisions otherwise prohibiting such a system. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).

Differential treatment not prohibited. —

While this section does prohibit granting monopoly fishing rights, it was not meant to prohibit differential treatment by the Board of Fisheries of such diverse user groups as commercial, sports, and subsistence fishermen. Kenai Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897 (Alaska 1981).

Statute granting a preference to rural residents to take fish and game for subsistence purposes violated this section. McDowell v. State, 785 P.2d 1 (Alaska 1989).

A ban on the use of a means of fishing does not equal a creation of an exclusive right or a special privilege. Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992).

Regulation upheld. —

A superexclusive use regulation prohibiting fishermen who operate in one of the superexclusive fisheries from participating in any other superexclusive fishery reflects an allocation decision which is both necessary and authorized under Article VIII, § 4 of the Alaska Constitution, and does not violate any of the Article VIII clauses prohibiting exclusive or special privileges to take fish and wildlife. State v. Herbert, 803 P.2d 863 (Alaska 1990).

A regulation allocating harvest levels of sockeye salmon did not violate either Article VIII, § 3 or Article VIII, § 17 of the Alaska Constitution, as the regulation was not arbitrary and capricious, did not create an exclusive right, and the affected fisheries were not “similarly situated”. The regulation reflected an allocation decision authorized under Article VIII, § 4 which the Board of Fisheries must necessarily make between users involved in different fisheries. Gilbert v. Dept. of Fish & Game, Bd. of Fisheries, 803 P.2d 391 (Alaska 1990).

5 AAC 99.010(b) does not implicate the equal access, uniform application, or equal protection clauses of either the Alaska or United States Constitutions. The regulation affects the classification of fisheries, but does not subject any user group to disparate treatment, and it does not affect any individual’s ability to obtain a subsistence permit or to utilize that permit in a subsistence area. It merely provides criteria to determine if the use patterns in that specific area support a finding of customary and traditional uses; this regulation does not affect any user’s admission to a user group and none of the criteria are based on residency. Citizens do not have a constitutional right to have a subsistence fishery in their preferred area. Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game, 289 P.3d 903 (Alaska 2012).

Superior court properly granted the Alaska Board of Game summary judgment upholding its regulations managing caribou hunting because the Board’s “amount reasonably necessary for subsistence” calculation did not implicate or violate the equal access, uniform application, or equal protection clauses of the Alaska Constitution; the Board’s subsistence definition applied equally to all of the State’s citizens. Manning v. Dep't of Fish & Game, 355 P.3d 530 (Alaska 2015), cert. denied, 577 U.S. 1148, 136 S. Ct. 1172, 194 L. Ed. 2d 193 (U.S. 2016).

Game ratio regulation unconstitutional. —

The game ratio formula described in 5 AAC 92.070(b)(1) is a structurally infirm and ultimately inaccurate method of measuring subsistence hunting permit applicants’ access to alternative food sources; it is not closely related to the state’s interest in ensuring that Alaskans who need to engage in subsistence hunting are able to do so, and, as such, the regulation violates §§ 3, 15, and 17 of article VIII of the Alaska Constitution. State v. Manning, 161 P.3d 1215 (Alaska 2007).

Constitutionality of ch. 186, SLA 1968. —

See Bazanich v. Reetz, 297 F. Supp. 300 (D. Alaska 1969), vacated, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (U.S. 1970); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (U.S. 1970).

Quoted in

Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961); Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980); State v. Alex, 646 P.2d 203 (Alaska 1982); Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256 (Alaska 1988); Grunert v. State, 109 P.3d 924 (Alaska 2005).

Cited in

Wickersham v. Commercial Fisheries Entry Comm'n, 680 P.2d 1135 (Alaska 1984); State v. Morry, 836 P.2d 358 (Alaska 1992); Alaska Trademark Shellfish, LLC v. State, 91 P.3d 953 (Alaska 2004).

Section 16. Protection of Rights.

No person shall be involuntarily divested of his right to the use of waters, his interests in lands, or improvements affecting either, except for a superior beneficial use or public purpose and then only with just compensation and by operation of law.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

The “use of waters” language of this section is coterminous with riparian rights. Classen v. State, Dep't of Highways, 621 P.2d 15 (Alaska 1980).

Fishing entry permit not compensable property. —

Under the plain language of AS 16.43.150(e) , fishing entry permit is not compensable property for purposes of takings clauses in the Fifth Amendment, Alaska Const., art. I, § 18, and Alaska Const., art VIII, § 16; therefore, commercial salmon fishers failed to state a takings claim based on regulations which reduced the amount of fish they were able to catch, reducing the value of their entry permits. Vanek v. State, 193 P.3d 283 (Alaska 2008).

This section affords protection against the involuntary divestment of private property rights for a superior beneficial use, such as the construction of a by-pass, by specifying that it shall be “only with just compensation and by operation of law.” Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Property owner has private right of littoral access. —

See Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

There is little difference between land-access and water-access situations, at least where the facts establish actual use of water access. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Wharves. —

Alaska Const. art. VIII, § 16 only protects property rights in wharves constructed prior to statehood. Riparian owners who constructed wharves since statehood gained no protected property interest. State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

The supreme court questioned the validity of a restricted definition of the private right of access in water cases, especially in view of the more realistic right of access recognized in land-access cases. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Because a new reasonable use rule was announced by the Supreme Court of Alaska for the unreasonable interference with riparian or littoral rights, the superior court, on remand, was to conduct the proper legal analysis to determine whether lake front property owners' use unreasonably interfered with their neighbors' use before the court determined whether the dock built by the owners constituted a private nuisance. McCavit v. Lacher, 447 P.3d 726 (Alaska 2019).

A party was not entitled to compensation under this section when construction of a bridge destroyed his ability to use his residence on the river as a base for his floatplane air taxi service because, although the construction made his floatplane operation more expensive and difficult, it did not actually prevent his use of the river for that purpose or interfere with traditional riparian rights. Classen v. State, Dep't of Highways, 621 P.2d 15 (Alaska 1980); Ellis v. State, Dep't of Nat. Res., 944 P.2d 491 (Alaska 1997).

Regulations affecting value of shore fishery leases did not result in compensable taking of leases under takings clauses of the Fifth Amendment, Alaska Const., art. I, § 18, and Alaska Const., art. VIII, § 16 because the leases contained language permitting the regulations at issue. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Statute of limitations. —

Because the last disputed conveyance took place 27 years before the holder of a special use permit brought his second takings claim against the State of Alaska, it was barred by the ten-year statute of limitations under AS 09.10.030 , and by res judicata. Smith v. State, 274 P.3d 1179 (Alaska 2012).

Section 17. Uniform Application.

Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation.

Cross references. —

See notes to Alaska Const., art. VIII, § 10.

Opinions of attorney general. —

AS 38.05.082 can be amended to limit the issuance of state tidelands leases for fisheries development to residents of Alaska. 1983 Alas. Op. Att'y Gen. No. 03.

Notes to Decisions

Applicability. —

The right to lead subsistence lifestyles is not limited to Alaska Natives; the benefits of subsistence living are shared by all Alaskans and class of Alaska Natives could not bring a public nuisance action based on interference with subsistence lifestyles because they could show no special injury different in kind from that suffered by the general public. Alaska Native Class v. Exxon Corp. (In re Exxon Valdez), 104 F.3d 1196 (9th Cir. Alaska 1997).

Local land sale lottery ordinance was unconstitutional insofar as it required participants to have been residents of the borough for one year preceding their applications and to the extent that it granted a five percent reduction in the sale price of a parcel for each year of residency in the borough, up to a maximum reduction of 50 percent. Gilman v. Martin, 662 P.2d 120 (Alaska 1983).

Statute granting a preference to rural residents to take fish and game for subsistence purposes violated this section. McDowell v. State, 785 P.2d 1 (Alaska 1989).

Superexclusive use regulation upheld. —

A superexclusive use regulation prohibiting fishermen who operate in one of the superexclusive fisheries from participating in any other superexclusive fishery reflects an allocation decision which is both necessary and authorized under Article VIII, § 4 of the Alaska Constitution, and does not violate any of the Article VIII clauses prohibiting exclusive or special privileges to take fish and wildlife. State v. Herbert, 803 P.2d 863 (Alaska 1990).

Regulation upheld. —

5 AAC 99.010(b) does not implicate the equal access, uniform application, or equal protection clauses of either the Alaska or United States Constitutions. The regulation affects the classification of fisheries, but does not subject any user group to disparate treatment, and it does not affect any individual’s ability to obtain a subsistence permit or to utilize that permit in a subsistence area. It merely provides criteria to determine if the use patterns in that specific area support a finding of customary and traditional uses; this regulation does not affect any user’s admission to a user group and none of the criteria are based on residency. Citizens do not have a constitutional right to have a subsistence fishery in their preferred area. Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game, 289 P.3d 903 (Alaska 2012).

When the Commissioner of the Alaska Department of Fish and Game limited time for, and then closed, a set net fishery while also increasing drift net fishery time, the uniform application clause was not violated because the order was justified in light of an historically low Kenai River, Alaska, king salmon run and the fact that set netters incidentally harvested substantially more king salmon than drift netters. Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, 357 P.3d 789 (Alaska 2015).

Superior court properly granted the Alaska Board of Game summary judgment upholding its regulations managing caribou hunting because the Board’s “amount reasonably necessary for subsistence” calculation did not implicate or violate the equal access, uniform application, or equal protection clauses of the Alaska Constitution; the Board’s subsistence definition applied equally to all of the State’s citizens. Manning v. Dep't of Fish & Game, 355 P.3d 530 (Alaska 2015), cert. denied, 577 U.S. 1148, 136 S. Ct. 1172, 194 L. Ed. 2d 193 (U.S. 2016).

Community harvest permit condition applies equally to all Alaskans, does not meaningfully limit admission to the user group, and does not discriminate between user groups; all Alaskans are eligible for a community harvest permit; the only requirements are finding a group of other hunters with whom to collaborate and complying with the “applicable customary and traditional use pattern,” and any inconvenience these requirements may pose does not implicate constitutional rights. Manning v. State, 420 P.3d 1270 (Alaska 2018).

Fishing permit regulations upheld. —

Requiring the permit-holder of a commercial fishing license to be personally present during fishing operations does not substantially impair the permit-holder’s right to engage in commercial fishing or his right of access to the fishery. Although the regulation does impair the permit-holder’s ability to take another job and let someone else use the permit to fish, the permit-holder has only a minimal interest (if any) in being able to rent or loan his or her permit to others outside the parameters of existing law. Baker v. State, 878 P.2d 642 (Alaska Ct. App. 1994).

Game ratio regulation unconstitutional. —

The game ratio formula described in 5 AAC 92.070(b)(1) is a structurally infirm and ultimately inaccurate method of measuring subsistence hunting permit applicants’ access to alternative food sources; it is not closely related to the state’s interest in ensuring that Alaskans who need to engage in subsistence hunting are able to do so, and, as such, the regulation violates §§ 3, 15, and 17 of article VIII of the Alaska Constitution. State v. Manning, 161 P.3d 1215 (Alaska 2007).

Validity of distinguishing residential from recreational users. —

Disparate treatment of residential and recreational users in the context of granting preference rights under AS 38.05.035 does not violate equal protection guarantees. Reichmann v. State, Dep't of Nat. Res., 917 P.2d 1197 (Alaska 1996).

Commercial versus private wharves on public land. —

Department of Natural Resources did not violate equal protection rights by compelling commercial landowners who constructed wharves to enter into lease agreements while imposing no similar requirement upon private landowners because riparian landowners using state land to construct wharves for private use are not similarly situated to those using state land to construct wharves for commercial use, and the legislature expressed an intention that the DNR maximize the return on the leasing of state land. State v. Alaska Riverways, Inc., 232 P.3d 1203 (Alaska 2010).

“Similarly situated” construed. —

A regulation allocating harvest levels of sockeye salmon did not violate either this section or Alaska Const., art. VIII, § 3, as the regulation was not arbitrary and capricious, did not create an exclusive right, and the affected fisheries were not “similarly situated”. The regulation reflected an allocation decision authorized under Alaska Const., art. VIII, § 4 which the Board of Fisheries must necessarily make between users involved in different fisheries. Gilbert v. Dept. of Fish & Game, Bd. of Fisheries, 803 P.2d 391 (Alaska 1990).

Modification of oil and gas leases. —

A legislative enactment approving and giving effect to modifications of particular oil and gas leases did not violate this section because the sole lessee was uniquely situated with respect to the enactment, and no other entity was similarly situated. Baxley v. State, 958 P.2d 422 (Alaska 1998).

Quoted in

Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256 (Alaska 1988); State v. Anthony, 810 P.2d 155 (Alaska 1991); Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992).

Cited in

State v. Tanana Valley Sportsmen's Ass'n, 583 P.2d 854 (Alaska 1978); Owsichek v. Guide Licensing & Control Bd., 763 P.2d 488 (Alaska 1988); State v. Morry, 836 P.2d 358 (Alaska 1992).

Section 18. Private Ways of Necessity.

Proceedings in eminent domain may be undertaken for private ways of necessity to permit essential access for extraction or utilization of resources. Just compensation shall be made for property taken or for resultant damages to other property rights.

Notes to Decisions

Legislative intent. —

The provisions in this article were intended to permit the broadest possible access to and use of state waters by the general public. Wernberg v. State, 516 P.2d 1191 (Alaska 1973).

Notes to Decisions

Constitutional limitations on legislature’s taxing power not negated. —

Nothing contained in this article can be construed to grant the legislature power to ignore other express constitutional limitations on its taxing power just because it is legislating in an area that concerns natural resources. State v. Alex, 646 P.2d 203 (Alaska 1982).

Fish allocative regulation upheld. —

Regulation promulgated by the Alaska Board of Fisheries allocating the number of chinook (king) salmon that may be harvested by commercial seiners and gillnetters, commercial trollers, and sport fishers in southeast Alaska, did not violate any of the policies contained in Article VIII of the Alaska Constitution. Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314 (Alaska 1994).

Article IX Finance and Taxation

Section 1. Taxing Power.

The power of taxation shall never be surrendered. This power shall not be suspended or contracted away, except as provided in this article.

Opinions of attorney general. —

The State of Alaska may not, by legislation or contract, bind the State to a tax structure for a proposed Alaska North Slope liquefied natural gas project in such a way as to prevent future legislatures from amending or repealing that tax structure. Under article IX, section 1 of the Alaska Constitution, the power of taxation cannot be surrendered. Thus, while the legislature can provide tax incentives or exemptions to encourage economic growth, those provisions must be under general law, and thus subject to amendment or repeal by a future legislature at any time. June 23, 2016 Op. Att’y Gen.

Notes to Decisions

Power to impose limitation period on assessment and collection. —

Constitutional grant of power to exempt property from taxation, contained in Alaska Const., art. IX, § 4, encompasses power to require that taxes be assessed and collected within a certain period of time or be forever barred. Alascom, Inc. v. North Slope Borough, 659 P.2d 1175 (Alaska 1983).

Cited in

Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983).

Section 2. Nondiscrimination.

The lands and other property belonging to citizens of the United States residing without the State shall never be taxed at a higher rate than the lands and other property belonging to the residents of the State.

Section 3. Assessment Standards.

Standards for appraisal of all property assessed by the State or its political subdivisions shall be prescribed by law.

Notes to Decisions

Type of valuation. —

It was not error to assess the Trans-Alaska Pipeline System’s use value because AS 43.56.060 does not require a “fair market value” assessment. There was no market from which to find fair market value because the pipeline is a limited-market and special-purpose property, and use value was not applied to non-system property. BP Pipelines (Alaska) Inc. v. State, 325 P.3d 478 (Alaska 2014).

Fairness of valuation. —

City board of equalization did not err in refusing to reduce the building component of owner’s property tax assessment because city assessor had discretion to determine the full and true value of owner’s condominium and assessor did not abuse his discretion; assessor determined full and true value of owner’s interest by selecting five single family homes with an average base cost somewhat less than that of owner’s condominium and comparing values of such homes to the value of owner’s condominium unit. Black v. Municipality of Anchorage, 187 P.3d 1096 (Alaska 2008).

Quoted in

Hoblit v. Greater Anchorage Area Borough, 473 P.2d 630 (Alaska 1970); City of Valdez v. State, 372 P.3d 240 (Alaska 2016).

Collateral references. —

71 Am.Jur.2d, State and Local Taxation, § 20 to 22, 118 to 142, 519 to 546.

84 C.J.S., Taxation, §§ 26 to 58.

Landlord and tenant: construction of provision of lease providing for escalation of rental in event of tax increases. 48 ALR3d 287.

Property tax: exemption of property leased by and used for purposes of otherwise tax-exempt body. 55 ALR3d 430.

Property tax: Business situs of intangibles held in trust in state other than beneficiary’s domicil. 59 ALR3d 837.

Validity, construction, and effect of state statutes affording preferential property tax treatment to land used for agricultural purposes. 98 ALR3d 916.

Validity of statutory classifications based on population — tax statutes. 98 ALR3d 1083.

Classification, as real estate or personal property, of mobile homes or trailers for purposes of state or local taxation. 7 ALR4th 1016.

Section 4. Exemptions.

The real and personal property of the State or its political subdivisions shall be exempt from taxation under conditions and exceptions which may be provided by law. All, or any portion of, property used exclusively for non-profit religious, charitable, cemetery, or educational purposes, as defined by law, shall be exempt from taxation. Other exemptions of like or different kind may be granted by general law. All valid existing exemptions shall be retained until otherwise provided by law.

Opinions of attorney general. —

As an attribute of its sovereignty, the State of Alaska is immune from taxation of any kind. 1962 Alas. Op. Att'y Gen. No. 16.

The constitutional Committee on Finance and Taxation has adequately clarified the ambiguity regarding the intended meaning of the state exemption provision of this section. The committee commentary with reference to this section states: “All property owned by the State and its subdivisions is exempt from taxation unless the legislature provides otherwise. An exception to tax immunity might be appropriate if a government engaged in what is normally a private business such as operating a ski resort, a moving picture theatre, or a swimming pool.” 1962 Alas. Op. Att'y Gen. No. 16.

State property is not subject to special assessments levied by local subdivisions of the state for improvements which benefit such property. 1966 Alas. Op. Att'y Gen. No. 10.

Special assessments are usually distinguished from general taxation. Special assessments are levied for improvements which benefit particular individuals or property and are levied with reference to, and in proportion to, the special benefit conferred. General taxes, on the other hand, are imposed for the purpose of raising monies to be expended for governmental purposes without regard to special benefits conferred on a particular group or class of persons or property. 1966 Alas. Op. Att'y Gen. No. 10.

A constitutional or statutory exemption from taxation is to be taken as an exemption from ordinary taxes, for the general purposes of government, state, county, or municipal; and does not relieve those in whose favor such exemption exists from the obligation to pay special assessments for local improvements which are charged upon property on the theory that such property is specially benefited thereby. 1966 Alas. Op. Att'y Gen. No. 10.

Any exemption for state property from special assessment will have to be found separate and apart from this section. The obvious implication of AS 18.55.250 is that it is the policy of the legislature that public property used for essential public and government purposes is exempt from local special assessments. 1966 Alas. Op. Att'y Gen. No. 10.

Immunity of state may be waived only by express constitutional or statutory declaration providing that the state shall be subject to particular tax provisions or to its tax statutes generally. 1962 Alas. Op. Att'y Gen. No. 16.

The immunity of the state from taxation does not exempt third parties dealing with the state from payment of state taxes when the burden of taxation in a particular transaction falls upon that party and not upon the state; however, when the incidence of taxation falls clearly upon the state, there is no obligation on the part of the party dealing with the state to collect and pay over the tax to the state. 1962 Alas. Op. Att'y Gen. No. 16.

The presumption that state tax laws are intended to apply to private activity only is equally applicable to instrumentalities and political subdivisions of the state. 1962 Alas. Op. Att'y Gen. No. 16.

Municipal corporations are immune in the same manner and to the same degree as is the state itself. 1962 Alas. Op. Att'y Gen. No. 16.

All religious property in the state not used for business, rent, or profit is exempt from taxation; however, property of a religious organization used for the production of income is taxable, but even in this situation a proration must be made with regard to the property involved, between those portions being used for business, rent or profit, and those with no such use. 1962 Alas. Op. Att'y Gen. No. 15.

Notes to Decisions

Strict construction. —

Provisions exempting property from ad valorem taxation must be strictly construed against the property holder and in favor of the taxing authority. McKee v. Evans, 490 P.2d 1226 (Alaska 1971).

Scope of exemption. —

The exemption provisions of Alaska Const. art. IX, § 4 and AS 29.45.030(a)(3) do not catalogue all factors that might define eligibility for charitable-purpose exemptions; it is appropriate to consider any circumstance relevant to whether a particular property owner has satisfied the constitutional and statutory standard. Fairbanks N. Star Borough v. Dena' Nena' Henash, 88 P.3d 124 (Alaska 2004).

The power of deciding what types of education are to be publicly supported, either under the School Foundation Act or by tax exemption, is vested with the legislature. McKee v. Evans, 490 P.2d 1226 (Alaska 1971).

This section directs the legislature to define the educational exemption and encourage the exercise of that responsibility. McKee v. Evans, 490 P.2d 1226 (Alaska 1971).

The word “like” refers to the named exemptions in the preceding sentence. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962).

And “different” was intended to clearly indicate that the legislature was not to be bound by the rule of ejusdem generis and was free to grant other exemptions, even though they might not be of the same kind or character as those named. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962).

“Non-profit” not identical to “charitable purposes” requirement. —

“Non-profit” under Alaska Const. art. IX, § 4 and AS 29.45.030(a)(3) imposes a substantive qualification that is not identical to the “charitable purposes” requirement; the focus is on the purpose of the use, not on the organization. Fairbanks N. Star Borough v. Dena' Nena' Henash, 88 P.3d 124 (Alaska 2004).

Purpose of second sentence of section. —

The second sentence of this section only serves to emphasize the alternative wording of the following sentence wherein it is provided that other exemptions of like or different kind may be granted by general law. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962).

Former AS 29.10.336 was enacted pursuant to this section. Harmon v. North Pac. Union Conference Ass'n, 462 P.2d 432 (Alaska 1969).

The phrase “educational purposes” as used in this section includes systematic instruction in any and all branches of learning from which a substantial public benefit is derived. McKee v. Evans, 490 P.2d 1226 (Alaska 1971).

The term “educational purposes” is in no way delimited, and there is no justification for the supreme court to give to that term anything other than its ordinary meaning. That restrictive definition is a legislative concern seems especially apparent at a time when there is increasing desire for specialized practical education, a proliferation of new kinds of educational institutions, and rapidly changing concepts of mass education. McKee v. Evans, 490 P.2d 1226 (Alaska 1971).

The minutes of the constitutional convention reveal no indication of what was intended to constitute an “educational” purpose, the drafters stating merely that they intended to adopt a “standard” state exemption. Nor has the legislature defined the term as it has done with regard to “religious purposes.” McKee v. Evans, 490 P.2d 1226 (Alaska 1971).

“Charity” or “charitable purposes”. —

Neither in Alaska’s constitution nor in its general laws are the terms “charity” or “charitable purposes” defined. In such circumstances, resort to the common-law definition of these terms is appropriate. Matanuska-Susitna Borough v. King's Lake Camp, 439 P.2d 441 (Alaska 1968).

It is quite clear that what is done out of good will and a desire to add to the improvement of the moral, mental, and physical welfare of the public generally comes within this meaning of the word “charity.” Matanuska-Susitna Borough v. King's Lake Camp, 439 P.2d 441 (Alaska 1968).

The test of charitable exemption looks to the use of the property, not to the use of the income derived from that property. City of Nome v. Block No. H, 502 P.2d 124 (Alaska 1972).

Use providing a public benefit indicates that the property is being used for a charitable purpose under Alaska Const. art. IX, § 4 and AS § 29.45.030(a)(3). Fairbanks N. Star Borough v. Dena' Nena' Henash, 88 P.3d 124 (Alaska 2004).

Effect of charity receiving rent or income from property. —

A benevolent or charitable undertaking is not shorn of tax-exempt status because it charges fees and thereby realizes rent or income from its property. Matanuska-Susitna Borough v. King's Lake Camp, 439 P.2d 441 (Alaska 1968).

Generation of revenue not fatal to charitable-purpose exemption. —

Whether a nonprofit organization receives outside funding allowing it to provide services at reduced cost or no charge to the community does not determine whether property is being used for a charitable purpose; an otherwise exempt property that generates revenue will not lose its exemption if: (1) Payment is not sought as a result of a dominant profit motive; (2) payment is both incidental to and reasonably necessary for the accomplishment of the exempt activity; and (3) payment does not exceed operating costs. Fairbanks N. Star Borough v. Dena' Nena' Henash, 88 P.3d 124 (Alaska 2004).

The providing of recreational facilities, such as accommodations for campers, is a charitable use of the property. Matanuska-Susitna Borough v. King's Lake Camp, 439 P.2d 441 (Alaska 1968).

Actual use rather than owner’s use should be analyzed in determining eligibility for an exemption. Greater Anchorage Area Borough v. Sisters of Charity, 553 P.2d 467 (Alaska 1976).

Taxpayer must show exclusive use for nonprofit religious, etc., purposes. —

In order to qualify for an exemption, the taxpayer must show not benefits, but exclusive use for nonprofit religious, charitable, cemetery, hospital or educational purposes. Greater Anchorage Area Borough v. Sisters of Charity, 553 P.2d 467 (Alaska 1976).

Or there can be no exemption. —

When the property in question is used even in part by nonexempt parties for their private business purposes, there can be no exemption. Greater Anchorage Area Borough v. Sisters of Charity, 553 P.2d 467 (Alaska 1976).

Operating surplus will not preclude an otherwise valid tax exemption so long as revenue is not generated out of a dominant profit motive and revenue is allocated only to support exempt purposes. Fairbanks N. Star Borough v. Dena' Nena' Henash, 88 P.3d 124 (Alaska 2004).

Office space rented to doctors engaged in private practice. —

Office space in a building partially used exclusively for nonprofit hospital purposes, rented to doctors engaged in the private practice of medicine by a nonprofit charitable and religious corporation, was not exempt from taxation. Greater Anchorage Area Borough v. Sisters of Charity, 553 P.2d 467 (Alaska 1976).

While the use of office space by doctor-tenants in conducting their private practices does provide incidental benefits to the adjacent hospital, the office space is not used exclusively for hospital purposes. Greater Anchorage Area Borough v. Sisters of Charity, 553 P.2d 467 (Alaska 1976).

Parsonage of assistant or lay pastor is exempt from ad valorem taxation under the broadened tax exemption provisions of this section and former AS 29.10.336. Evangelical Covenant Church of Am. v. City of Nome, 394 P.2d 882 (Alaska 1964). See now AS 29.45.030 .

Property and facilities of a church-owned radio station are subject to ad valorem taxation if they are not used exclusively for religious purposes. Evangelical Covenant Church of Am. v. City of Nome, 394 P.2d 882 (Alaska 1964).

Spatial apportionment. —

The “all, or any portion of, property” language of this section mandates the spatial apportionment of all property into exempt and nonexempt portions; former AS 29.53.020 (see now AS 29.45.030 ) mandates spatial apportionment of applicable “property,” “residences,” “structures,” and “lots.” City of Nome v. Catholic Bishop, 707 P.2d 870 (Alaska 1985).

Third sentence of section authorizes exemptions similar to exemptions granted to state. —

The third sentence of this section authorizes the legislature to grant exemptions similar to the exemptions granted to the state by the first sentence of this section. Such exemptions may thus be for both real and personal property. City of Nome v. Block No. H, 502 P.2d 124 (Alaska 1972).

Exemption for Alaska State Development Corporation was constitutional. —

Former AS 44.59.300, according an exemption to the Alaska State Development Corporation, was upheld as constitutional under the third sentence of this section. City of Nome v. Block No. H, 502 P.2d 124 (Alaska 1972).

When the legislature chose to exempt the Alaska State Development Corporation from “all taxes and assessments,” it meant to draw upon its full powers under the third sentence of this section, and thereby to grant ASDC an exemption for both its real and personal property. City of Nome v. Block No. H, 502 P.2d 124 (Alaska 1972).

Alaska State Development Corporation held exempt. —

Where actions of the Alaska State Development Corporation to keep a foreclosed property saleable by continuing operation of its hotel-restaurant-bar complex were in consonance with the ASDC’s powers and in furtherance of the valid public purpose of the ASDC and therefore constituted use of the property for a public purpose, the ASDC did not lose its tax exemption. City of Nome v. Block No. H, 502 P.2d 124 (Alaska 1972).

Municipality exempt from tax. —

Gas produced by a municipal light and power department for its own use in generating electricity for sale in the municipality may be exempted from the gas production tax under this section, even if the department’s activity is commercial in nature. State v. Municipality of Anchorage, 104 P.3d 120 (Alaska 2004).

Precedent for determining validity of rate increase. —

Because the Regulatory Commission of Alaska (RCA) inappropriately relied on arguments from the 1988 Municipality Utilities Service Assessment modification rather than acknowledging the statutory requirements for taxation and addressing the merits of the municipality’s and Anchorage Water and Wastewater Utility’s tax equity arguments, RCA’s decision lacked a reasonable basis. Municipality of Anchorage v. Regulatory Comm'n of Alaska, 208 P.3d 163 (Alaska 2009).

Government contractor status does not necessarily render property ineligible for exemption. —

Assuming that a taxpayer was a government contractor, such a status was not necessarily inconsistent with finding that its property was used exclusively for non-profit charitable purposes. Fairbanks N. Star Borough v. Dena' Nena' Henash, 88 P.3d 124 (Alaska 2004).

Power to impose limitation period on assessment and collection. —

Constitutional grant of power to exempt property from taxation, contained in this section, encompasses power to require that taxes be assessed and collected within a certain period of time or be forever barred. Alascom, Inc. v. North Slope Borough, 659 P.2d 1175 (Alaska 1983).

Municipal sales tax on charitable gaming activities. —

This section did not apply to exempt a charitable organization from a municipal sales tax on its charitable gaming activities. Kotzebue Lions Club v. City of Kotzebue, 955 P.2d 921 (Alaska 1998).

Quoted in

Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003).

Cited in

Cogan v. State, Dep't of Revenue, 657 P.2d 396 (Alaska 1983); Forrer v. State, 471 P.3d 569 (Alaska 2020).

Collateral references. —

71 Am.Jur.2d, State and Local Taxation, §§ 208 to 223, 269 to 285.

85 C.J.S., Taxation, §§ 261 to 383.

Exemption of public school property from assessments for local improvements. 15 ALR3d 847.

Receipt of pay from beneficiaries as affecting tax exemption of charitable institutions. 37 ALR3d 1191.

Tax exemption of property used by fraternal or benevolent association for clubhouse or similar purposes. 39 ALR3d 640.

What constitutes church, religious society or institution exempt from property tax under state constitutional or statutory provisions. 28 ALR4th 344.

Exemption of nonprofit theater or concert hall from local property taxation. 42 ALR4th 614.

Exemption from real-property taxation of residential facilities maintained by hospital for patients, staff, or others. 61 ALR4th 1105.

Section 5. Interests in Government Property.

Private leaseholds, contracts, or interests in land or property owned or held by the United States, the State, or its political subdivisions, shall be taxable to the extent of the interests.

Notes to Decisions

Paragraph (a)(1) of AS 29.45.030 tracks this constitutional provision. —

See Ben Lomond, Inc. v. Fairbanks N. Star Borough Bd. of Equalization, 760 P.2d 508 (Alaska 1988).

Land leased from government and buildings subsequently constructed leased back. —

Where taxpayer has leased land on an air force base from the federal government and has leased back to the government the housing project taxpayer constructed on the land, taxpayer’s leasehold interest as well as its interest in the buildings are subject to taxation. Ben Lomond, Inc. v. Fairbanks N. Star Borough Bd. of Equalization, 760 P.2d 508 (Alaska 1988).

Taxation of leaseholds by cities. —

This section does not say in so many words that leaseholds shall be taxable by cities. But neither has that power been specifically denied to cities. City of Anchorage v. Baker, 376 P.2d 482 (Alaska 1962).

Applied in

Fairbanks North Star Borough Assessor's Office v. Golden Heart Utils., Inc., 13 P.3d 263 (Alaska 2000).

Quoted in

Williams v. Ketchikan Gateway Borough, 295 P.3d 374 (Alaska 2013).

Section 6. Public Purpose.

No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose.

Opinions of attorney general. —

The expenditure of state money in the construction of a hospital operated by a religious nonprofit group under the terms and conditions imposed by the federal government under the Hill-Burton Act is a public purpose and not prohibited by the constitution or laws of the state. 1959 Alas. Op. Att'y Gen. No. 19.

The Utility Reimbursement Law is constitutional. 1961 Alas. Op. Att'y Gen. No. 12.

The use of public resources for a partisan election campaign is not per se prohibited by the public purpose doctrine. However, the power of state officials to expend state money or use state property in support of a partisan position in an election campaign must be narrowly construed. April 15, 1986 Op. Att’y Gen.

In general, a municipality’s restricting use of a public facility to a particular race, ethnic group, or religion would violate AS 37.05.315 , the grant agreement, and, most importantly, the public purpose clause of this section. February 26, 1987 Op. Att’y Gen.

Notes to Decisions

This section is a general measure and expresses a very definite policy. Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

Its proscription is against the appropriation of “any public money.” Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

The phrase “public purpose” represents a concept which is not capable of precise definition. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

It would be a disservice to future generations for the supreme court to attempt to define “public purpose.” Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

It is a concept which will change as changing conditions create changing public needs. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966); Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

Determination of public purpose. —

Whether a public purpose is being served must be decided as each case arises and in the light of the particular facts and circumstances of each case. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966); Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

Use of state aid for reimbursement of a guarantor who has had to pay a hospital construction loan did not violate the public purpose clause of this section. Lake Otis Clinic v. State, 650 P.2d 388 (Alaska 1982).

The technique used by most courts is that of looking to the entire factual and governmental context to determine whether a particular plan of action serves a public purpose. Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

Depends upon character of use. —

The test of whether a public purpose is being served does not depend on the religious or nonreligious nature of the agency that will operate property leased from city, but upon the character of the use to which the property will be put. Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963).

It is not essential that the entire community or any particular number of persons should benefit from remedial legislation in order that a public purpose be served. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Where the record showed that the defendant borough based its decision to construct a gas line on the public’s stated need for a new line, the fact that the operator was a private company was irrelevant to the public purpose being served. Weber v. Kenai Peninsula Borough, 990 P.2d 611 (Alaska 1999).

Court will not set aside finding of legislature. —

Where the legislature has found that a public purpose will be served by the expenditure or transfer of public funds or the use of the public credit, the court will not set aside the finding of the legislature unless it clearly appears that such finding is arbitrary and without any reasonable basis in fact. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

The courts will not interfere with the exercise of legislative discretion unless it is clearly shown that the legislative determination that a public purpose will be served by the means chosen is arbitrary and without any reasonable basis in fact. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Industrial development. —

It is recognized that the location of an industry in a particular community may have widespread economic benefits and that these do fulfill the public purpose and the general welfare of the community, broadly conceived. Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

The test which the supreme court must apply is whether a plan for the development of industry within a municipality is so unreasonable as to transgress the limitations of the Alaska Constitution. Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

A general obligation bond issue for the purpose of encouraging industrial development within a municipality was held valid. Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

Relief and support of the poor has long been recognized as an obligation of government and a public purpose. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Relieving economic distress. —

It is a public purpose to expend public moneys to relieve economic distress by aiding those persons in the state who have suffered a substantial financial burden as a result of a natural disaster. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Establishment of savings account. —

The proposed sales and use tax did not violate this section as it had a public purpose, the establishment of a savings account for future public purposes. Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995).

The issuance of the debenture certificates by Alaska State Development Corporation does not constitute a transfer of public funds and the use of public credit for other than a public purpose. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962).

Alaska State Development Corporation. —

The announced purpose of the act creating the Alaska State Development Corporation (former AS 44.59.430) was a sound basis in fact and the dominant purpose was a public one. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962).

Alaska Mortgage Adjustment Program held constitutional. —

See Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

The purpose of the Alaska Mortgage Adjustment Program is no less public because its benefits may be limited by circumstances to a comparatively small part of the public. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Since the Alaska State Mortgage Association (former AS 44.83.010 — 44.83.240) was created for a public purpose within the meaning of this section, the use of public grants and loans is constitutionally permissible. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

The purposes for which the Alaska State Mortgage Association (former AS 44.83.010 — 44.83.240) was created were public purposes within the ambit of this section. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Ketchikan hospital. —

The moneys used to construct the Ketchikan hospital were spent for a public purpose, since a community hospital serves the general welfare. That purpose does not become nonpublic when the hospital is turned over to a charitable, nonprofit corporation for operation, rather than being operated by the city itself. The public purpose remains unchanged. Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963).

Customer telephone equipment. —

Anchorage Telephone Utility’s lease, rental, and sale of customer telephone equipment is not an unlawful use of public funds in violation of this section. Marketing of customer telephone equipment fulfills a public purpose; the Municipality of Anchorage’s providing telephone services through the utility promotes access and convenience and fulfills a need for reliability. Comtec, Inc. v. Municipality of Anchorage, 710 P.2d 1004 (Alaska 1985).

Quoted in

Juneau v. Hixson, 373 P.2d 743 (Alaska 1962); Sheldon Jackson College v. State, 599 P.2d 127 (Alaska 1979); Meiners v. Bering Strait Sch. Dist., 687 P.2d 287 (Alaska 1984).

Cited in

Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290 (Alaska 2015); Forrer v. State, 471 P.3d 569 (Alaska 2020).

Collateral references. —

63A Am.Jur.2d, Public Funds, §§ 1 to 3, 5, 6, 40 to 42.

81A C.J.S., States, § 328 to 334.

Section 7. Dedicated Funds.

The proceeds of any state tax or license shall not be dedicated to any special purpose, except as provided in section 15 of this article or when required by the federal government for state participation in federal programs. This provision shall not prohibit the continuance of any dedication for special purposes existing upon the date of ratification of this section by the people of Alaska.

Cross references. —

For an exception to the prohibition against dedicated funds, see § 15 of this article which establishes the permanent fund.

Effect of amendments. —

The amendment effective February 21, 1977 (9th Legislature’s SCS CSSSHJR 39 (Res) am S (1976)) inserted “as provided in section 15 of this article or” in the first sentence.

Opinions of attorney general. —

Among the reasons such a prohibition, as is found in this section, was recommended are the following: (1) flexibility of budgeting; (2) financial control; and (3) lack of relationship between the tax and purpose. 1959 Alas. Op. Att'y Gen. No. 7.

Delegates to the constitutional convention were desirous of eliminating dedications so that the legislature would have the greatest flexibility in allocating tax revenues on a basis of need. 1959 Alas. Op. Att'y Gen. No. 7.

A dedication encompasses (1) proceeds or part of the proceeds of a tax or license (2) set aside at a certain rate (3) for a particular purpose. 1959 Alas. Op. Att'y Gen. No. 7.

As a matter of compromise, a grandfather clause was included in this section to permit all dedications existing on the date of ratification of the constitution (April 24, 1956) to continue. 1959 Alas. Op. Att'y Gen. No. 7.

The intent of the drafters of the state constitution was to permit the continuance of existing dedications at the then existing rates until the legislature saw fit to exercise the only power retained in relation to them: That is, the power to repeal. 1959 Alas. Op. Att'y Gen. No. 7.

Any attempted alteration short of repeal is a nullity. 1959 Alas. Op. Att'y Gen. No. 7.

The prohibition against dedications should be read in conjunction with Alaska Const., art. XI, § 7, which deals with restrictions on the initiative and referendum. Therein it is stated that the initiative and referendum shall not be used to create or apply to dedications of “revenue.” 1959 Alas. Op. Att'y Gen. No. 7.

Any attempted dedication of funds after April 26, 1956, which was not absolutely required for participation in federal programs, had to be covered into the general fund, any statute notwithstanding. 1959 Op. Att’y Gen. No. 7, issued prior to the 1977 amendment of this section.

Any repeal or repeal and re-enactment of a dedication during the 1957 session takes the dedication from under the protection of the grandfather clause, and a re-enactment either in 1957 or later is a nullity unless the dedication is required by the federal government for participation in federal programs. 1959 Op. Att’y Gen., No. 7, issued prior to the 1977 amendment of this section.

Existing dedications may be continued but may not be revised upward or downward by means of altering the tax, the rate of dedication or the purpose for which the dedication will be used. 1959 Alas. Op. Att'y Gen. No. 7; 1959 Alas. Op. Att'y Gen. No. 9; 1959 Alas. Op. Att'y Gen. No. 14.

No action of the legislature is permissible which would (1) tend to increase or decrease the percentage of the total tax and license proceeds which are dedicated, or (2) which would tend to increase or decrease the amount of proceeds which are dedicated. 1959 Alas. Op. Att'y Gen. No. 7; 1959 Alas. Op. Att'y Gen. No. 14.

When the tax is lowered the entire dedication falls and all tax proceeds are covered into the general fund. This result is compelled by a realization that the lowering of the tax irretrievably lowers the dedication because insufficient revenues are available to maintain the present rate of the dedication. Since the only power retained by the legislature with respect to a dedication (other than administrative alterations in the management of the dedication) is the power of repeal, such irretrievable action is tantamount to a repeal of the dedication. 1959 Alas. Op. Att'y Gen. No. 14.

When the legislature raises the tax, the excess tax simply goes into the general fund. 1959 Alas. Op. Att'y Gen. No. 14.

The 1957 amendment to AS 43.40.010 , which reduced the tax on motor fuel used in commercial fishing crafts for purposes of commercial fishing from five cents to two cents per gallon, effected no change in the dedication inasmuch as the reduction in the tax is coupled with an exemption from the refund of three cents per gallon formerly allowed to users of fuel in commercial fishing craft for commercial purposes. Nothing has been done which increases or decreases the dedication. 1959 Alas. Op. Att'y Gen. No. 14.

Although fourth class cities may now be incorporated cities within the intent of AS 43.70.080 , they would not be entitled to any refunds under such section, since if this were the case, the effect of ch. 79, SLA 1959 would be to make a new dedication of a state tax or license for a special purpose. Any such dedication would be invalid under the provisions of this section. 1960 Alas. Op. Att'y Gen. No. 5.

If the moneys in the general fund must be applied in a particular way and the amount to be applied is determined by a set formula, rather than by each legislature’s judgment, the intent of this section has been thwarted. The legislature’s hands are tied as effectively as in the case where the proceeds of a particular tax are dedicated. 1969 Op. Att’y Gen. No. 5, overruled in part on other grounds, May 2, 1975 Op. Att’y Gen.

As to constitutionality of requiring a portion of the general fund to be allocated to local governments each year in accordance with a fixed formula, see 1969 Op. Att’y Gen. No. 5, overruled in part on other grounds, May 2, 1975 Op. Att’y Gen.

Employees’ retirement system and emoluments of office for all commissioners, heads of state agencies and the members of the judiciary and legislature are authorized by the Alaska Constitution and are implied exceptions to the prohibition of this section. 1969 Op. Att’y Gen., No. 5 overruled in part on other grounds, May 2, 1975 Op. Att’y Gen.

This section had two interrelated purposes: (1) to prevent any future dedication of revenues for special purposes, and (2) to prevent the creation of new special funds separate from the general fund. May 2, 1975 Op. Att’y Gen.

This section of the state constitution can be given its intended effect and serve its repeatedly expressed purpose only if the words “proceeds of any tax or license” are interpreted to mean what their framers clearly intended, i.e., the sources of any public revenues. May 2, 1975, Op. Att’y Gen.

The dedication of any source of public revenue: tax, license, rental, sale, bonus-royalty, royalty, or whatever, is limited by the state constitution to those existing when the constitution was ratified or required for participation in federal programs. May 2, 1975 Op. Att’y Gen.

The real concern at the constitutional convention was about earmarked funds, not taxes or licenses, but funds. May 2, 1975 Op. Att’y Gen.

Dedication of the revenues from the lease or sale of state natural resources offends the state constitutional prohibition against dedicated funds. May 2, 1975 Op. Att’y Gen.

The prohibition of this section is against new dedications, i.e., those dedications of revenues which did not exist on April 24, 1956, the date of the constitution’s ratification. June 2, 1978 Op. Att’y Gen.

Reducing a dedication makes it different from that which existed, i.e., an existing dedication is not continued when it is reduced any more than it is when it is increased. June 2, 1978 Op. Att’y Gen.

Legislation developed to eliminate the double fee paid by commercial fishermen who are also holders of limited entry permits, which in effect, exempted permit holders from license fees and provided for payment into the fishermen’s fund from moneys collected for permit fees of an amount equal to the amount which would have been paid into the fund from collections for commercial fishing licenses offends this section since it did not continue an existing dedication. June 2, 1978, Op. Att’y Gen.

A dedication is not repealed in its entirety by the partial elimination of its source but rather that it is reduced to provide for a dedication solely from all that is left of the source. June 2, 1978 Op. Att’y Gen.

The Violent Crimes Compensation Board is authorized by statute to recover, receive, and collect receipts; however, under the Alaska Constitution, all receipts must revert to the general fund. September 25, 1980 Op. Att’y Gen.

The practice of appropriating to a separate fund an amount to be ascertained by reference to receipts from a specified source does not violate the dedication prohibition of the constitution. November 30, 1982 Op. Att’y Gen.

Language of this section prohibiting dedication of proceeds of any state tax or license must be read as embodying certain implied exceptions, specifically, pension contributions, proceeds from bond issues, sinking fund receipts, revolving fund receipts, contributions from local government units for state-local cooperative programs, and tax receipts which the state might collect on behalf of local government units. November 30, 1982 Op. Att’y Gen.

There is no unlawful dedication involved in the return to a revolving loan fund of principal payments on loans. The initial appropriation would suffice to authorize the use of that money for other loans until the legislature reappropriates the unobligated assets of the fund or abolishes the fund. November 30, 1982 Op. Att’y Gen.

For discussion of issues involved in question of whether dedication prohibition applies to interest or other income earned by money appropriated to revolving funds and other funds and accounts, see November 30, 1982 Op. Att’y Gen.

The provisions of AS 16.43.310 and 16.43.320 , which authorize the Commercial Fisheries Entry Commission to establish and administer a buy-back program, offend the state constitutional prohibition against dedicated funds. May 23, 1985 Op. Att’y Gen.

Pre-existing dedications of revenue established by statute to satisfy trust obligations imposed by federal law are excluded from the reach of Alaska Const., art. IX, § 17. That section applies to proceeds net of dedications otherwise permitted under this section, which permits dedications that are required for participation in a federal program. 1993 Alas. Op. Att'y Gen. No. 1.

Notes to Decisions

This clause prohibiting dedicated funds seeks to preserve an annual appropriation model which assumes that not only will the legislature remain free to appropriate all funds for any purpose on an annual basis, but that government departments will not be restricted in requesting funds from all sources. Sonneman v. Hickel, 836 P.2d 936 (Alaska 1992).

Assessments authorized by former AS 16.10.530 were “proceeds of a state tax or license.” —

Since the constitution prohibits the dedication of any source of revenue, including both “taxes” and “special assessments,” the assessments authorized by former AS 16.10.530 were “proceeds of a state tax or license,” within the meaning of this section, whether or not the salmon assessments fit the definition of “special assessments.” State v. Alex, 646 P.2d 203 (Alaska 1982).

One subject rule. —

An initiative creating a “soft dedication” of funding for one proposal from a tax created in a separate unrelated proposal could not be interpreted to find that two independent provisions of an initiative addressed one subject. Croft v. Parnell, 236 P.3d 369 (Alaska 2010).

Local school funding. —

The required local contribution was constitutional because the existing funding formula did not violate the dedicated funds clause, the appropriations clause, or the governor’s veto where the minutes of the constitutional convention and the historical context of those proceedings revealed that the delegates did not intend for required local contributions to be a state tax or license; the local contribution never entered the state treasury. State v. Ketchikan Gateway Borough, 366 P.3d 86 (Alaska 2016).

Bill conveying lands to university. —

Question of whether bill allowing the University of Alaska to select between 250,000 and 260,000 acres of state lands which would then be conveyed to the university to manage was an unconstitutional dedication was remanded for further consideration. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Act conveying lands to university. —

Act, codified in AS 14.40.365 , 14.40.366 , 14.40.400(a)(2) , conveying land to the University of Alaska and providing for proceeds of the land to go to the University’s endowment trust fund, was unconstitutional because it improperly dedicated state funds in violation of Alaska Const. art. IX, § 7, with the exception of severable provisions of the act creating a research forest. Southeast Alaska Conservation Council v. State, 202 P.3d 1162 (Alaska 2009).

Deposit of Alaska Power Authority revenues into state general fund. —

Net proceeds from the Alaska Power Authority’s operations in excess of actual debt payments are deposited into the state general fund, the Authority receiving money for maintenance and operation of its facilities from legislative appropriations. M-K Engineering Co. v. Alaska Power Authority, 662 F. Supp. 303 (D. Alaska 1986).

Based upon this article, funds left over from Alaska Power Authority projects are lapsed into the state’s general fund for later reappropriation. M-K Engineering Co. v. Alaska Power Authority, 662 F. Supp. 303 (D. Alaska 1986).

Sale of future revenue from the tobacco lawsuit settlement. —

Selling the right to receive future revenue from the tobacco lawsuit was constitutional because the legislative appropriation power included the power to sell state assets, lawsuit settlements were not traditional sources of public revenue, and the legislature had the responsibility to manage the state’s risk. Myers v. Alaska Hous. Fin. Corp., 68 P.3d 386 (Alaska 2003).

Permanent fund income not exempted from anti-dedication clause. —

Superior court properly decided a political dispute about the Alaska permanent fund dividend program in favor of the State and the Alaska permanent fund Corporation because the plain language of the 1976 amendment to the state constitution did not exempt the legislature's use of permanent fund income from the Constitution's anti-dedication clause, the legislature's use of permanent fund income was subject to normal appropriation and veto budgetary processes, and the governor validly exercised his veto authority to reduce the legislatively authorized transfer from the earnings reserve to the dividend fund and did not alter the legislature's purpose. Wielechowski v. State, 403 P.3d 1141 (Alaska 2017).

Cited in

State v. Anthony, 810 P.2d 155 (Alaska 1991); Forrer v. State, 471 P.3d 569 (Alaska 2020).

Section 8. State Debt.

No state debt shall be contracted unless authorized by law for capital improvements or unless authorized by law for housing loans for veterans, and ratified by a majority of the qualified voters of the State who vote on the question. The State may, as provided by law and without ratification, contract debt for the purpose of repelling invasion, suppressing insurrection, defending the State in war, meeting natural disasters, or redeeming indebtedness outstanding at the time this constitution becomes effective.

Effect of amendments. —

The amendment effective December 24, 1982 (12th Legislature’s CSHJR 71 (St. Aff.)(1982)), inserted “or unless authorized by law for housing loans for veterans” in the first sentence.

Editor's notes. —

The amendment proposed by 2016 Legislative Resolve 53, SLA 2016, (SJR 2) (state debt for student loans) was rejected by voters.

Opinions of attorney general. —

Constitutional prohibitions against incurring indebtedness refer to obligations against the general credit of the state. 1959 Alas. Op. Att'y Gen. No. 39.

And not to obligations payable from a special tax or fund. 1959 Alas. Op. Att'y Gen. No. 39.

Since the state may allow an advance under the Reed Act to be repaid by the lessening of federal credits available to employers, it is apparent that the general credit of the state is not involved and consequently such an advance is not a state debt within the meaning of this section. 1959 Alas. Op. Att'y Gen. No. 39.

Notes to Decisions

Scheme to purchase outstanding oil and gas exploration tax credits using subject-to-appropriation bonds was unconstitutional debt.

AS 37.18.010 et seq. contracted state debt prohibited by Alaska Const. art. IX, § 8, as subject-to-appropriation bonds were contrary to the plain text of the Alaska Constitution and the framers' intent. Moreover, the subject-to-appropriation bonds established by AS 37.18.010 et seq. did not satisfy the Carr-Gottstein test as the bondholders' sole recourse was to government assets, i.e., legislatively appropriated funds, held by the public corporation. Forrer v. State, 471 P.3d 569 (Alaska 2020).

Construction. —

Debt provisions in Alaska Const. art. IX form a cohesive whole, with Alaska Const. art. IX, §§ 10 and 11, providing narrow exceptions to the blanket restriction in Alaska Const. art. IX, § 8. Forrer v. State, 471 P.3d 569 (Alaska 2020).

Constitutional “debt” defined. —

Constitutional “debt” is defined “as a term of art used to describe an ‘obligation’ involving borrowed money where ‘there is a promise to pay sums such as rents accruing in the future whether funds are available or not’.” Carr-Gottstein Properties v. State, 899 P.2d 136 (Alaska 1995).

Destruction caused by an earthquake and seismic waves is a natural disaster. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Determining whether debt meets natural disaster. —

Whether or not a particular debt contracted for by the state meets a natural disaster must be decided as each case arises. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

A legislative program that involves contracting a state debt meets a natural disaster when it reasonably tends to cope with the effects of the disaster. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Scheme to purchase outstanding oil and gas exploration tax credits. —

AS 37.18.010 et seq. contracted state debt prohibited by Alaska Const. art. IX, § 8, as subject-to-appropriation bonds were contrary to the plain text of the Alaska Constitution and the framers' intent. Moreover, the subject-to-appropriation bonds established by AS 37.18.010 et seq. did not satisfy the Carr-Gottstein test as the bondholders' sole recourse was to government assets, i.e., legislatively appropriated funds, held by the public corporation. Forrer v. State, 471 P.3d 569 (Alaska 2020).

Relieving economic hardship. —

To give relief to those who have suffered economic hardship as the result of a natural disaster is to meet such disaster within the meaning of the constitution. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

The governor’s exercise of the item veto to general obligation bond authorizations is unconstitutional since general obligation bond authorizations do not qualify as appropriations under Alaska Const., art. II, § 15. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Any time the legislature allocates moneys from the general fund or special funds, the governor’s line item veto would be appropriate. However, the sale of general obligation bonds is the commitment of the state to a debtor relationship with those who purchase the bonds, and is therefore distinguishable from such allocations. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Valid reasons for differentiating certain appropriations from public revenues. —

There are valid reasons for differentiating between debt financing and other appropriations from public revenues. First, the check on the power of the legislature that lies in the people means there is less need for the executive to have a “strong control on the purse strings.” Second, the purposes are quite often different. Third, the executive still has the power to veto any bill in its entirety. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

In special obligation bonding, the general taxing power of the state is not pledged. The bonds are paid by revenues generated by the project. In such a case, the “purse” of the state would be only slightly affected — only by the moneys required to float the bond, which is usually paid back out of the special fund. In such circumstances, where there is a check on the legislature’s discretion coming directly from the people and repayment coming directly from the project, there is little need for the extraordinary executive power of the line item veto. Thomas v. Rosen, 569 P.2d 793 (Alaska 1977).

Alaska Mortgage Adjustment Program held constitutional. —

See Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Alaska State Mortgage Association. —

The bonds, notes and debentures of the Alaska State Mortgage Association (former AS 44.83.010 — 44.83.240) were not debts of the state within the scope of this section. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Alaska State Development Corporation. —

Funds realized through the sale of bonds which were backed only by the resources and credit of the Alaska State Development Corporation (former AS 44.59.430) and which did not constitute debts of the state were not public funds. De Armond v. Alaska State Dev. Corp., 376 P.2d 717 (Alaska 1962); Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966).

Lease-purchase agreement. —

Where a lease-purchase agreement does not require a future legislature to appropriate funds, the agreement is not a long-term binding obligation to repay borrowed money pursuant to this section and is not “debt” as defined by the Alaska supreme court. Carr-Gottstein Properties v. State, 899 P.2d 136 (Alaska 1995).

A lease-purchase agreement for purchase of a building between the Alaska Court System and Department of Natural Resources was upheld where it contained a nonappropriation clause, limited recourse to the leased property, and did not create a long-term obligation binding future generations or legislatures. Carr-Gottstein Properties v. State, 899 P.2d 136 (Alaska 1995).

Judicial review. —

The supreme court will not set aside the determination by the legislature that the contracting of a debt meets a natural disaster unless it clearly appears that such determination is arbitrary and without any reasonable basis in fact. Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966).

Quoted in

Juneau v. Hixson, 373 P.2d 743 (Alaska 1962); Gellert v. State, 522 P.2d 1120 (Alaska 1974); Short v. State, 600 P.2d 20 (Alaska 1979).

Cited in

Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); Myers v. Alaska Hous. Fin. Corp., 68 P.3d 386 (Alaska 2003).

Section 9. Local Debts.

No debt shall be contracted by any political subdivision of the State, unless authorized for capital improvements by its governing body and ratified by a majority vote of those qualified to vote and voting on the question.

Notes to Decisions

Applicability. —

The restriction of this section is specifically applicable to “any political subdivision of the State.” City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Intent was to protect financial integrity of such subdivisions. —

The constitutional convention evidenced a clear intent to protect the financial integrity of all political subdivisions, and limiting the purposes for which they could incur indebtedness to capital improvements was one means selected. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

But not to permit indebtedness to accomplish all desirable improvements. —

The limitation on the purposes for which political subdivisions could incur indebtedness was not intended to permit incurring indebtedness to accomplish all desirable improvements sponsored by the governing body and approved by the electorate. If this had been the intent, it would have been clearly stated by simply omitting the word “capital.” City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Applicability of restrictions. —

The restrictions on contracting debt contained in this section are applicable only where a political subdivision has endeavored to borrow money via the issuance of bonds or other paper indebtedness. Village of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266 (Alaska 1988).

Meaning of “capital.” —

“Capital” seems generally to be associated with value represented by real or personal property in some form and with relative permanency. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

“Capital” was used in the sense in which it is associated with assets in the form of real or personal property and it was intended to connote a degree of permanency. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

“Capital” includes the “public works of a permanent character” such as “streets, bridges, wharves and harbor facilities, sewers and sewage disposal plants, municipal buildings, schools, libraries, gymnasia and athletic fields, fire houses, and public utilities” as mentioned in the original act of Congress (49 Stat. 1388) authorizing municipal corporations in Alaska to incur bonded indebtedness. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

“Capital” included “off-street parking facilities” and “public works or facilities of a permanent character” as provided in former AS 29.50.010. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

“Improvement” in its broad sense means betterment. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

“Capital improvements” includes projects historically associated with municipal bonding. —

In selecting the term “capital improvements” the constitutional convention had in mind that it was including all the projects which had historically been associated with municipal bonding, but under a better generic term — one which did not require illustration by actually listing the type projects that were considered to be included within its meaning and stating that the list itself was not exclusive as was done in the original act of Congress (49 Stat. 1388) authorizing municipal corporations in the territory of Alaska to incur bonded indebtedness. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

There is nothing in the history of municipal bonding in Alaska, or in the minutes of the constitutional convention that indicates that the term “capital improvements” was intended to denote projects radically different than those for which municipalities had been permitted to incur bonded indebtedness in the past. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Effect of enactment of former AS 29.50.010. —

The legislature enacted former AS 29.50.010 to supplement this section and did not intend to attempt to substitute a different purpose than that established by “capital improvements” in the constitution. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

The legislature considered “public works or facilities of a permanent nature” to be synonymous with, or at least included within the meaning of, “capital improvements.” City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Bond issue to provide land for state capitol. —

A proposal by the city of Juneau to issue general obligation bonds for the purpose of providing land without cost to the state as a site for expansion of the State Capitol Center Site and for a site for its capitol which is convenient in location, adequate in size and practical in operating economy, was not a capital improvement and could not be financed on borrowed money. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Industrial development. —

The test which the supreme court must apply is whether a plan for the development of industry within a municipality is so unreasonable as to transgress the limitations of the Alaska Constitution. Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

A general obligation bond issue for the purpose of encouraging industrial development within a municipality was held valid. Wright v. Palmer, 468 P.2d 326 (Alaska 1970).

A judgment entered upon a settlement stipulation is not a “debt . . . contracted” in the constitutional sense. Village of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266 (Alaska 1988).

Applied in

North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978); Area G Home & Landowners Org. v. Anchorage, 927 P.2d 728 (Alaska 1996).

Section 10. Interim Borrowing.

The State and its political subdivisions may borrow money to meet appropriations for any fiscal year in anticipation of the collection of the revenues for that year, but all debt so contracted shall be paid before the end of the next fiscal year.

Notes to Decisions

Construction. —

Debt provisions in Alaska Const. art. IX form a cohesive whole, with Alaska Const. art. IX, §§ 10 and 11, providing narrow exceptions to the blanket restriction in Alaska Const. art. IX, § 8. Forrer v. State, 471 P.3d 569 (Alaska 2020).

Section 11. Exceptions.

The restrictions on contracting debt do not apply to debt incurred through the issuance of revenue bonds by a public enterprise or public corporation of the State or a political subdivision, when the only security is the revenues of the enterprise or corporation. The restrictions do not apply to indebtedness to be paid from special assessments on the benefited property, nor do they apply to refunding indebtedness of the State or its political subdivisions.

Notes to Decisions

Cited in

Juneau v. Hixson, 373 P.2d 743 (Alaska 1962); Myers v. Alaska Hous. Fin. Corp., 68 P.3d 386 (Alaska 2003).

Section 12. Budget.

The governor shall submit to the legislature, at a time fixed by law, a budget for the next fiscal year setting forth all proposed expenditures and anticipated income of all departments, offices, and agencies of the State. The governor, at the same time, shall submit a general appropriation bill to authorize the proposed expenditures, and a bill or bills covering recommendations in the budget for new or additional revenues.

Cross references. —

For the executive budget act, see AS 37.07.

Opinions of attorney general. —

The deadlines set out in AS 37.07.020 and 37.07.062 appear to be constitutional under this section. February 28, 1983 Op. Att’y Gen.

Notes to Decisions

Monetary concept of appropriations. —

Alaska Const., art. IX, § 12 suggests a strictly monetary concept of appropriations. If non-monetary asset transfers were deemed to be appropriations, Alaska Const., art. IX, § 12 would presumably require such asset transfers to be included in the several appropriation bills submitted by the governor. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Quoted in

Simpson v. Murkowski, 129 P.3d 435 (Alaska 2006).

Section 13. Expenditures.

No money shall be withdrawn from the treasury except in accordance with appropriations made by law. No obligation for the payment of money shall be incurred except as authorized by law. Unobligated appropriations outstanding at the end of the period of time specified by law shall be void.

Opinions of attorney general. —

It is the duty of the Department of Revenue to recover amounts erroneously refunded to a municipality. 1963 Alas. Op. Att'y Gen. No. 20.

This provision gives the legislature total and absolute power over the expenditure of state funds. February 28, 1977 Op. Att’y Gen.

The University of Alaska is similar in all or most respects to other state executive agencies for purposes of budgeting and accounting; it does not have any peculiar status by virtue of being constitutionally established. February 28, 1977 Op. Att’y Gen.

Only rarely can an appropriation for state expenses be spent before the effective date of the law containing the appropriation. August 7, 1985 Op. Att’y Gen.

The Alaska Safety Advisory Council (ASAC) cannot legally spend program receipts without going through the state budgetary or other administrative process. By statute, program receipts must be deposited with the Department of Revenue. Authority to receive and expend funds for a state agency must be through legislative appropriation. ASAC is a state body and the purchase of goods and services by the ASAC must conform with the State Procurement Code. January 4, 1991 Op. Att’y Gen.

Notes to Decisions

All appropriations made by legislative act. —

Statutory language implementing this section establishes a budgetary system in which all appropriations are made by legislative act. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

Methods of appropriation available to home-rule municipalities. —

The Alaska Constitution imposes no explicit restrictions on the methods of appropriation available to home-rule municipalities. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

State is not bound to pay court judgments absent legislative appropriation. —

Chevron U.S.A., Inc. v. Hammond (A77-195 Civil) (D. Alaska 1978).

This was so regarding refund judgment for risk charges paid under former AS 30.25. —

An appropriation was required before a state court refund judgment for risk charges paid under former AS 30.25, which regulated the transfer of crude oil, refined petroleum products, or by-products of oil terminal facilities, could be satisfied. Chevron U.S.A., Inc. v. Hammond (A77-195 Civil) (D. Alaska 1978).

Therefore, remedy held inadequate for purposes of federal anti-injunction act. —

Without a legislative appropriation establishing a right to payment of a refund judgment for risk charges paid under AS 30.25, the remedy available to applicants for a risk avoidance certificate challenging the validity of annual risk charges was not adequate for the purposes of the federal anti-injunction act, 28 U.S.C. § 1341, which prohibits district courts from enjoining the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of such state. Chevron U.S.A., Inc. v. Hammond (A77-195 Civil) (D. Alaska 1978).

Building renovation funds. —

Funds placed in escrow for the renovation of a building that was the subject of a lease-purchase agreement between the Department of Natural Resources and Alaska Court System did not constitute unrestricted “program receipts” for deposit in the state treasury and did not violate this provision. Carr-Gottstein Properties v. State, 899 P.2d 136 (Alaska 1995).

Quoted in

Zerbetz v. Alaska Energy Ctr., 708 P.2d 1270 (Alaska 1985); Simpson v. Murkowski, 129 P.3d 435 (Alaska 2006); Wielechowski v. State, 403 P.3d 1141 (Alaska 2017).

Cited in

Ault v. Alaska State Mortgage Ass'n, 387 P.2d 698 (Alaska 1963); Vest v. Schafer, 757 P.2d 588 (Alaska 1988); Public Employees' Local 71 v. State, 775 P.2d 1062 (Alaska 1989); Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

Section 14. Legislative Post-Audit.

The legislature shall appoint an auditor to serve at its pleasure. He shall be a certified public accountant. The auditor shall conduct post-audits as prescribed by law and shall report to the legislature and to the governor.

Section 15. Alaska Permanent Fund.

At least twenty-five percent of all mineral lease rentals, royalties, royalty sale proceeds, federal mineral revenue sharing payments and bonuses received by the State shall be placed in a permanent fund, the principal of which shall be used only for those income-producing investments specifically designated by law as eligible for permanent fund investments. All income from the permanent fund shall be deposited in the general fund unless otherwise provided by law.

Cross references. —

For provisions governing the management of the Alaska permanent fund, see AS 37.13; for provisions concerning permanent fund dividends, see AS 43.23.

Effective dates. —

This section took effect February 21, 1977 (9th Legislature’s SCS CSSSHJR 39 (Res) am S (1976)).

Editor’s notes. —

The amendments and new subsection proposed by 2000 Legislative Resolve 54 (CCS SJR 34) (corporation and board members) were rejected by voters.

Legislative history reports. —

For report on House Joint Resolution No. 39 (CS SSHJR 39), SSHJR 39), see 1976 House Journal, p. 683.

Opinions of attorney general. —

Since this section specifically authorizes dedications to the Permanent Fund of “at least” 25 percent of certain revenues, any additional dedication to the fund by statute or by appropriation is also permissible. November 30, 1982 Op. Att’y Gen.

If the legislature enacts any other distribution program which is consistent with the intent of the permanent fund dividend law (AS 43.23), any appropriation to implement that program will be exempt from the appropriation limit of § 16, art. IX, of the state constitution. 1983 Alas. Op. Att'y Gen. No. 01.

The appropriation limit of section 16 of this article must be interpreted consistently with the permanent fund amendment contained in this section. Each legislature may reexamine existing law and enact different laws providing for the use of income earned by the Alaska permanent fund. If section 16 were interpreted so that the exception for permanent fund dividends applied only to appropriations to finance cash dividends under AS 43.23, the legislature would essentially be denied the flexibility to adjust to changing philosophies concerning the propriety of making cash payments directly to residents, which this section expressly reserves to it. 1983 Alas. Op. Att'y Gen. No. 01.

Notes to Decisions

Expectancy is not a financial interest. —

In a suit in federal court seeking injunctive relief barring state trial judges and jurors from deciding a dispute over royalties allegedly due from a plaintiff corporation to the state for oil drilled on state land, where the plaintiff contended that its counterclaims in the royalty litigation might conceivably affect the quantity of money in Alaska’s Permanent Fund, and where the United States District Court Judges for this District of Alaska received dividends, as do all resident Alaska judges, recusal of the judge was not warranted because the expectancy a citizen has in receiving Permanent Fund dividends is not a financial interest but is subject to legislative whim. Exxon Corp. v. Heinze, 792 F. Supp. 72 (D. Alaska 1992).

Permanent fund income not exempted from anti-dedication clause. —

Superior court properly decided a political dispute about the Alaska permanent fund dividend program in favor of the State and the Alaska permanent fund Corporation because the plain language of the 1976 amendment to the state constitution did not exempt the legislature's use of permanent fund income from the Constitution's anti-dedication clause, the legislature's use of permanent fund income was subject to normal appropriation and veto budgetary processes, and the governor validly exercised his veto authority to reduce the legislatively authorized transfer from the earnings reserve to the dividend fund and did not alter the legislature's purpose. Wielechowski v. State, 403 P.3d 1141 (Alaska 2017).

Quoted in

Williams v. Zobel, 619 P.2d 422 (Alaska 1980); Alaska Oil Co. v. Alaska, 45 B.R. 358 (D. Alaska 1985); State v. Anthony, 810 P.2d 155 (Alaska 1991); Department of Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621 (Alaska 1993).

Stated in

Zobel v. Williams, 457 U.S. 55, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (U.S. 1982).

Cited in

United States v. Pleier, 849 F. Supp. 1321 (D. Alaska 1994); Harrod v. State, 255 P.3d 991 (Alaska 2011).

Section 16. Appropriation Limit.

Except for appropriations for Alaska permanent fund dividends, appropriations of revenue bond proceeds, appropriations required to pay the principal and interest on general obligation bonds, and appropriations of money received from a non-State source in trust for a specific purpose, including revenues of a public enterprise or public corporation of the State that issues revenue bonds, appropriations from the treasury made for a fiscal year shall not exceed $2,500,000,000 by more than the cumulative change, derived from federal indices as prescribed by law, in population and inflation since July 1, 1981. Within this limit, at least one-third shall be reserved for capital projects and loan appropriations. The legislature may exceed this limit in bills for appropriations to the Alaska permanent fund and in bills for appropriations for capital projects, whether of bond proceeds or otherwise, if each bill is approved by the governor, or passed by affirmative vote of three-fourths of the membership of the legislature over a veto or item veto, or becomes law without signature, and is also approved by the voters as prescribed by law. Each bill for appropriations for capital projects in excess of the limit shall be confined to capital projects of the same type, and the voters shall, as provided by law, be informed of the cost of operations and maintenance of the capital projects. No other appropriation in excess of this limit may be made except to meet a state of disaster declared by the governor as prescribed by law. The governor shall cause any unexpended and unappropriated balance to be invested so as to yield competitive market rates to the treasury.

Effective dates. —

This section took effect December 24, 1982 (12th Legislature’s FSS FCCSSJR 4 (1981)).

Opinions of attorney general. —

This section imposes an appropriation limit rather than a spending limit. The legislature may make appropriations which exceed available revenues, but obligations may not be paid under those appropriations unless there is enough surplus money available in the treasury. 1983 Alas. Op. Att'y Gen. No. 01.

There is history which supports a liberal interpretation of the term “capital project” as used in this section. 1983 Alas. Op. Att'y Gen. No. 01.

If the legislature enacts any other distribution program which is consistent with the intent of the permanent fund dividend law (AS 43.23), any appropriation to implement that program will be exempt from the appropriation limit of this section. 1983 Alas. Op. Att'y Gen. No. 01.

If the legislature provides that an appropriation may not be expended until a later fiscal year, the appropriation should be counted only against the limit for that later fiscal year. 1983 Alas. Op. Att'y Gen. No. 01.

The one-third appropriation allocation reserved for capital projects and loan appropriations may be disregarded when economic conditions impose a total appropriation limit which is more restrictive than that set out in this section. 1983 Alas. Op. Att'y Gen. No. 01.

Appropriations that are available for expenditure in a fiscal year should be counted only against the appropriation limit of this section for the first fiscal year during which they could be completely expended. This should be done even if an unexpended balance is carried forward into the next fiscal year; that balance must be considered obligated for the purposes of the appropriation limit. 1983 Alas. Op. Att'y Gen. No. 01.

Appropriations to retire municipal general obligation school bond indebtedness under AS 14.11 are “required” and qualify as an exception to the spending limit of this section. 1983 Alas. Op. Att'y Gen. No. 01.

Notes to Decisions

Monetary concept of appropriations. —

Treating non-monetary asset transfers as appropriations is not only inconsistent with the language of Alaska Const., art. IX, § 16, but it poses the further problem of how to calculate the value of such asset transfers to ensure that they fall within the appropriations limits imposed by the Alaska Constitution. In expressing the limit in dollars, Alaska Const., art. IX, § 16 reflects a constitutional structure that treats “appropriations” as dealing exclusively with money transfers. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

Cited in

Forrer v. State, 471 P.3d 569 (Alaska 2020).

Section 17. Budget Reserve Fund.

  1. There is established as a separate fund in the State treasury the budget reserve fund. Except for money deposited into the permanent fund under Section 15 of this article, all money received by the State after July 1, 1990, as a result of the termination, through settlement or otherwise, of an administrative proceeding or of litigation in a State or federal court involving mineral lease bonuses, rentals, royalties, royalty sale proceeds, federal mineral revenue sharing payments or bonuses, or involving taxes imposed on mineral income, production, or property, shall be deposited in the budget reserve fund. Money in the budget reserve fund shall be invested so as to yield competitive market rates to the fund. Income of the fund shall be retained in the fund. Section 7 of this article does not apply to deposits made to the fund under this subsection. Money may be appropriated from the fund only as authorized under (b) or (c) of this section.
  2. If the amount available for appropriation for a fiscal year is less than the amount appropriated for the previous fiscal year, an appropriation may be made from the budget reserve fund. However, the amount appropriated from the fund under this subsection may not exceed the amount necessary, when added to other funds available for appropriation, to provide for total appropriations equal to the amount of appropriations made in the previous calendar year for the previous fiscal year.
  3. An appropriation from the budget reserve fund may be made for any public purpose upon affirmative vote of three-fourths of the members of each house of the legislature.
  4. If an appropriation is made from the budget reserve fund, until the amount appropriated is repaid, the amount of money in the general fund available for appropriation at the end of each succeeding fiscal year shall be deposited in the budget reserve fund. The legislature shall implement this subsection by law.

Effective date. —

This section became effective on January 2, 1991 (16th Legislature’s HCS CSSSSJR 5 (Fin) am H (1990).)

Opinions of attorney general. —

Since this section clearly and unambiguously states that it applies to revenues received after July 1, 1990, it applies retrospectively to settlement proceeds received after the beginning of fiscal year 1990, even though the section did not take effect until January 2, 1991. 1992 Alas. Op. Att'y. Gen. No. 1 (April 24).

Pre-existing dedications of revenue established by statute to satisfy trust obligations imposed by federal law are excluded from the reach of this section, which applies to proceeds net of dedications otherwise permitted under Alaska Const., art. IX, § 7, which permits dedications that are required for participation in a federal program. 1992 Alas. Op. Att’y. Gen. No. 1 (April 24).

The term “administrative proceeding” in this section does not include the informal conference process established by AS 43.05.240 for the resolution of tax disputes. The section applies only to the proceeds of disputes that have progressed to an adjudicatory stage of the dispute resolution process. 1992 Alas. Op. Att’y. Gen. No. 1 (April 24).

Notes to Decisions

Analysis

I.Administrative Proceedings

Attributes. —

Attributes of an administrative proceeding include: 1) a dispute must exist; 2) a document reflecting the fact of the dispute which serves a function similar to that of a complaint in a civil action, or an accusation or statement of issues under the Administrative Procedure Act, AS 44.62.360 , 44.62.370 , must be served by one party on the other party; and 3) the document must set in motion mechanisms prescribed by statute or regulation under which the dispute will ultimately be resolved. Hickel v. Halford, 872 P.2d 171 (Alaska), modified, — P.2d — (Alaska 1994).

Rulemaking proceedings excluded. —

Rulemaking administrative proceedings are clearly not included within the meaning of the term “administrative proceeding” used in subsection (a). Hickel v. Halford, 872 P.2d 171 (Alaska), modified, — P.2d — (Alaska 1994).

Express consent and termination. —

An administrative proceeding under subsection (a) may terminate with or without the express consent of all of the parties. Hickel v. Halford, 872 P.2d 171 (Alaska), modified, — P.2d — (Alaska 1994).

Taxpayer assessment. —

An assessment issued by the Department of Revenue to a taxpayer under AS 43.05.270 satisfies all of the essential elements of an administrative proceeding under subsection (a). Hickel v. Halford, 872 P.2d 171 (Alaska), modified, — P.2d — (Alaska 1994).

Audit letter. —

An audit letter does not satisfy the essential elements of an administrative proceeding; mere notice of an intention to investigate neither indicates the existence of a dispute nor sets in motion mechanisms for the resolution of a dispute. Hickel v. Halford, 872 P.2d 171 (Alaska), modified, — P.2d — (Alaska 1994).

Cited in

Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004); Wielechowski v. State, 403 P.3d 1141 (Alaska 2017); Exxon Mobil Corp. v. Dep't of Revenue, 488 P.3d 951 (Alaska 2021).

II.Appropriation Amounts

Amount available for appropriation. —

Funds which require further legislative appropriation before expenditures can be made against them are available for appropriation; thus the Railbelt energy fund, AS 37.05.520 , the Alaska marine highway system vessel replacement fund, AS 37.05.550 , and the educational facilities maintenance and construction fund, AS 37.05.560 , remained “available for appropriation,” within the meaning of section 17(b). Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

Amount unavailable for appropriations. —

Monies which already have been validly committed by the legislature to some purpose should not be counted as available and, in addition, illiquid assets owned by the state are not available so long as they remain illiquid. Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

Because the legislature made the entire balance of the oil and hazardous substance release response fund available for expenditure, the amounts deposited into the fund were validly appropriated and therefore no longer available for appropriation. Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

III.Applications

AS 37.10.420 unconstitutional. —

Because AS 37.10.420(a)(2) does not include all actual appropriations made for the previous fiscal year in the “amount appropriated for the previous fiscal year,” it does not accurately reflect the meaning of the constitutional term under subsection (b). Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

Because AS 37.10.420(b) fails to consider all amounts which are “available for appropriation” within the meaning of subsection (d) in determining the state’s repayment obligation, it is unconstitutional. Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

Article X Local Government

Section 1. Purpose and Construction.

The purpose of this article is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdictions. A liberal construction shall be given to the powers of local government units.

Cross references. —

For statutory provisions relating to liberal construction and extent of local powers, see AS 29.35.400 29.35.420 .

Notes to Decisions

Home rule is constitutionally recognized in Alaska. State v. Jennings, 555 P.2d 248 (Alaska 1976).

Section encourages creation of borough governments. —

Aside from the standards for incorporation in former AS 07.10.030, there are no limitations in Alaska law on the organization of borough governments. The Alaska Constitution encourages their creation. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

The supreme court reads this section to favor upholding organization of boroughs by the local boundary commission whenever the requirements for incorporation have been minimally met. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

Boroughs are not restricted to the form and function of municipalities. They are meant to provide local government for regions as well as localities and encompass lands with no present municipal use. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

Construction of section as regards double taxation. —

This section merely announces a purpose of preventing the duplication of tax-levying jurisdictions; it is not a per se prohibition on double taxation. Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough, 135 P.3d 1000 (Alaska 2006).

Intent of rule in second sentence. —

The constitutional rule of liberal construction found in the second sentence was intended to make explicit the framers’ intention to overrule a common-law rule of interpretation which required a narrow reading of local government powers. Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska 1978).

Road service tax. —

Challenge to a road service tax was rejected because it was not a special assessment. It was calculated by applying a mill rate to the assessed value of the property; moreover, a borough has authority to tax for road services, and the validity of the tax does not depend upon whether the property owner receives a special benefit. DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290 (Alaska 2015).

Taxing authority under former AS 29.48.010(7) consistent with second sentence. —

The broad grant of taxing authority to municipalities under former AS 29.48.010(7) (see now AS 29.35.010 (6)), limited only by other provisions of law, was consistent with the second sentence of this section, which requires that “[a] liberal construction shall be given to the powers of local government.” Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska 1978).

There is no general prohibition against like municipal and state taxes. Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska 1978).

Liberal construction does not limit sales tax to commodities. —

In light of this section’s mandate that liberal construction be given to the powers of local government units, it could not be said that a qualifying sales tax under AS 04.21.010(c) must be imposed on a ‘commodity’; thus, a tax on rental of hotel and motel rooms constituted a sales tax on ‘other sales within the municipality’ for purposes of evaluating the validity of an ordinance imposing a sales tax on alcoholic beverages. Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough, 135 P.3d 1000 (Alaska 2006).

Power to impose civil penalty for failure to timely pay sales taxes. —

The power of a municipality to impose a civil penalty for failure to timely file or pay sales taxes is granted primarily because this section requires that a liberal construction be given to the powers of municipalities, a rule of interpretation that is echoed by statute [see now AS 29.35.400 29.35.420 ]. Bookey v. Kenai Peninsula Borough, 618 P.2d 567 (Alaska 1980).

Discussion of state preemption of taxation by general-law municipalities. —

See Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska 1978).

Smoking ban properly applied to private club. —

City and Borough of Juneau, Alaska, had authority to enact an ordinance banning smoking in private clubs; the ordinance did not violate privacy rights because private clubs operating in a commercial context do not enjoy privacy protections established for the home. Because smoking is not a fundamental right, strict scrutiny did not apply; the ordinance was upheld because the city had a legitimate interest in protecting the public from the dangers of second-hand tobacco smoke. Fraternal Order of Eagles v. City & Juneau-Douglas Aerie 4200, 254 P.3d 348 (Alaska 2011).

The Public Employment Relations Act, AS 23.40.070 et seq., is expressly made applicable to home-rule municipalities, and thus municipalities are impliedly prohibited from refusing to negotiate with organizations selected by employees unless the exemption was timely enacted. State v. City of Petersburg, 538 P.2d 263 (Alaska 1975), limited, Sitka v. International Bhd. of Elec. Workers, 653 P.2d 332 (Alaska 1982).

Applying a liberal construction to the powers of local government cannot override the express declaration of policy made a part of the Public Employment Relations Act when coupled with considerations of the impact of the repeal of AS 23.40.010 and the different language used in the 1972 exemption provision, ch. 113, § 4, SLA 1972. State v. City of Petersburg, 538 P.2d 263 (Alaska 1975), limited, Sitka v. International Bhd. of Elec. Workers, 653 P.2d 332 (Alaska 1982).

Purpose of statutes authorizing state land selection by borough or city. —

The enactment of former AS 29.18.190 and 29.18.200, authorizing state land selection by a borough or city, was designed to further the goal of maximum local self-government reflected in this section. North Slope Borough v. LeResche, 581 P.2d 1112 (Alaska 1978).

Applied in

Jefferson v. State, 527 P.2d 37 (Alaska 1974); City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978); City of Homer v. Gangl, 650 P.2d 396 (Alaska 1982); Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003); Bragg v. Matanuska-Susitna Borough, 192 P.3d 982 (Alaska 2008).

Quoted in

Chugach Elec. Ass'n v. Anchorage, 476 P.2d 115 (Alaska 1970); Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971); State v. Marshall, 633 P.2d 227 (Alaska 1981); Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981); State v. Alex, 646 P.2d 203 (Alaska 1982); City of Anchorage v. Richards, 654 P.2d 797 (Alaska Ct. App. 1982); Municipality of Anchorage v. Afualo, 657 P.2d 407 (Alaska Ct. App. 1983).

Stated in

Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995).

Cited in

Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska 1962); Gilman v. Martin, 662 P.2d 120 (Alaska 1983); Kenai Peninsula Borough v. State, Dep't of Cmty. & Reg'l Affairs, 751 P.2d 14 (Alaska 1988); Robart v. State, 82 P.3d 787 (Alaska Ct. App. 2004).

Section 2. Local Government Powers.

All local government powers shall be vested in boroughs and cities. The State may delegate taxing powers to organized boroughs and cities only.

Opinions of attorney general. —

A home rule city has the power to enact an ordinance exempting from local taxation any class of real or personal property, if such an exemption is not prohibited by the city’s home rule charter. 1969 Alas. Op. Att'y Gen. No. 1.

Notes to Decisions

Coexistence of cities and boroughs. —

Section merely authorizes, but does not require, coexistence of cities and boroughs. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Borough defined. —

The borough in Alaska is a political subdivision of the state for governmental purposes and corresponds generally to the county in other states. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Section limits taxing authority. —

To implement the goal of nonduplication of taxing jurisdictions, this section limits taxing authority to organized boroughs and cities. No other local entities may tax. Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska 1978).

Legislative delegation of taxing power. —

Legislature may not delegate its taxing power to entity other than borough or city. State v. Alex, 646 P.2d 203 (Alaska 1982).

Delegation of powers to arbitrator. —

Provision in the Code of the Municipality of Anchorage providing for final and binding interest arbitration did not constitute an unconstitutional delegation of power to an arbitrator, since the Anchorage Municipal Charter did not contain any express limitation upon the Municipal assembly’s power to delegate its legislative functions, the delegation in question was relatively narrow and related to the complex and potentially volatile subject of labor relations in the public sector, adequate standards to guide the arbitrator’s decision making were part of the delegation, and the arbitrator’s decision was subject to discrete procedures and to judicial review. Municipality of Anchorage v. Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080 (Alaska 1992).

Former section concerning royalty assessment on sale of salmon impermissibly delegated taxing power to regional associations, in violation of this section. State v. Alex, 646 P.2d 203 (Alaska 1982).

The “local activity rule” is an expedient method for resolving an impasse between state statutes which seek to further a specific policy and municipal ordinances which either directly or collaterally impede this implementation. Chugach Elec. Ass'n v. Anchorage, 476 P.2d 115 (Alaska 1970).

Applied in

Homer v. Gangl, 650 P.2d 396 (Alaska 1982).

Quoted in

Walters v. Cease, 394 P.2d 670 (Alaska 1964); Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995).

Stated in

Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska 1962); Begich v. Jefferson, 441 P.2d 27 (Alaska 1968); Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971); Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997); Municipality of Anchorage v. Repasky, 34 P.3d 302 (Alaska 2001).

Section 3. Boroughs.

The entire State shall be divided into boroughs, organized or unorganized. They shall be established in a manner and according to standards provided by law. The standards shall include population, geography, economy, transportation, and other factors. Each borough shall embrace an area and population with common interests to the maximum degree possible. The legislature shall classify boroughs and prescribe their powers and functions. Methods by which boroughs may be organized, incorporated, merged, consolidated, reclassified, or dissolved shall be prescribed by law.

Notes to Decisions

Purpose of section. —

This section vests in the legislature power to prescribe procedures for borough incorporation without restriction. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

This section was not intended to operate as an exception to the “general law” rule of Alaska Const., art. II, § 19. Abrams v. State, 534 P.2d 91 (Alaska 1975).

No exception to prohibition against local or special laws. —

Alaska Const., art. II, § 19 governs the exercise of all legislative powers expressly granted by other portions of the constitution. There is no intimation in its language or in the articles concerning local government which would create an exception to this prohibition against local or special laws. Abrams v. State, 534 P.2d 91 (Alaska 1975).

Borough defined. —

The borough in Alaska is a political subdivision of the state for governmental purposes and corresponds generally to the county in other states. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Petition properly approved. —

Local Boundary Commission properly approved a city’s petition to incorporate a new borough over an existing borough’s objection because the Commission (1) maximized common interests, (2) considered the existing borough’s consolidation and postponement requests, (3) exercised its discretion to not consolidate the petition with the existing borough’s annexation petition, (4) considered the existing borough’s evidence, and (5) did not have to analyze the competing petitions head-to-head, as the Commission’s common-interest finding presupposed thoroughly considering optimal boundaries. City & Borough of Juneau v. State, 361 P.3d 926 (Alaska 2015).

Quoted in

Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska 1962); Walters v. Cease, 394 P.2d 670 (Alaska 1964); State v. Ketchikan Gateway Borough, 366 P.3d 86 (Alaska 2016).

Stated in

Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971); United States ex rel. Norton Sound Health Corp. v. Bering Strait Sch. Dist., 138 F.3d 1281 (9th Cir. Alaska 1998).

Section 4. Assembly.

The governing body of the organized borough shall be the assembly, and its composition shall be established by law or charter.

Effect of amendments. —

The amendment effective October 14, 1972 (7th Legislature’s SJR 52 (1972)) deleted the second and third sentences which specified city and non-city representation on the borough assembly.

Notes to Decisions

Cited in

Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

Section 5. Service Areas.

Service areas to provide special services within an organized borough may be established, altered, or abolished by the assembly, subject to the provisions of law or charter. A new service area shall not be established if, consistent with the purposes of this article, the new service can be provided by an existing service area, by incorporation as a city, or by annexation to a city. The assembly may authorize the levying of taxes, charges, or assessments within a service area to finance the special services.

Opinions of attorney general. —

The legislature could establish school service areas in an unorganized borough by general law subject to the restrictive limitations of this section. 1961 Alas. Op. Att'y Gen. No. 24.

A home rule city does not have unreined authority to create service areas and impose a tax rate on that service area without complying with statutory law. December 8, 1986 Op. Att’y Gen.

Notes to Decisions

Incorporation of city. —

It is reasonable to interpret AS 29.35.450(b) and this constitutional provision as preferring incorporation of a city over the creation of new service areas. Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995).

AS 29.05.021(b) is not in conflict with either AS 29.35.450(b) or this section of the Alaska Constitution; rather AS 29.35.450(b) , which follows the language of this section, is a limitation on the creation of new service areas and in contrast, AS 29.05.021(b) is a limitation on the incorporation of cities. Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995).

Road service tax. —

Challenge to a road service tax was rejected because it was not a special assessment. It was calculated by applying a mill rate to the assessed value of the property, a borough had authority to tax for road services, and the validity of the tax did not depend upon whether the property owner received a special benefit. DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290 (Alaska 2015).

Expansion of service area. —

A municipality had the authority under its charter and ordinances to expand a police service area to include an area without a separate vote of that area’s residents. Area G Home & Landowners Org. v. Anchorage, 927 P.2d 728 (Alaska 1996), cert. denied, 520 U.S. 1211, 117 S. Ct. 1694, 137 L. Ed. 2d 821 (U.S. 1997).

Applied in

Falke v. Fairbanks N. Star Borough, 648 P.2d 597 (Alaska 1982).

Quoted in

Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447 (Alaska 1974); State v. Alex, 646 P.2d 203 (Alaska 1982); Fairbanks N. Star Borough v. College Utils. Corp., 689 P.2d 460 (Alaska 1984).

Cited in

Forrer v. State, 471 P.3d 569 (Alaska 2020).

Section 6. Unorganized Boroughs.

The legislature shall provide for the performance of services it deems necessary or advisable in unorganized boroughs, allowing for maximum local participation and responsibility. It may exercise any power or function in an unorganized borough which the assembly may exercise in an organized borough.

Notes to Decisions

Quoted in

State v. Alex, 646 P.2d 203 (Alaska 1982); Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391 (Alaska 1997).

Cited in

Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793 (Alaska 1975); Forrer v. State, 471 P.3d 569 (Alaska 2020).

Section 7. Cities.

Cities shall be incorporated in a manner prescribed by law, and shall be a part of the borough in which they are located. Cities shall have the powers and functions conferred by law or charter. They may be merged, consolidated, classified, reclassified, or dissolved in the manner provided by law.

Notes to Decisions

Power of home rule city is measured by charter. —

The meaning of this section is that, where a home rule city is concerned, the charter and not a legislative act is looked to in order to determine whether a particular power has been conferred upon the city. It would be incongruous to recognize the constitutional provision stating that a home rule city “may exercise all legislative powers not prohibited by law or by charter” (Alaska Const., art. X, § 11), and then to say that the power of a home rule city is measured by a legislative act. Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963).

This section and § 9 distinguished. —

The constitutional distinction between § 9 of this article, granting the qualified voters of a first class city the right to adopt, amend, or repeal a home rule charter, and this section, providing that cities may be merged, consolidated or dissolved in the manner provided by the legislature, appears to be reflective of a policy which has as its objective the placement of decisional responsibility for local problems within local control and decisional responsibility for broader problems in control of a broader community. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

The phrase “dissolved in the manner provided by law,” is interchangeable with “in the manner provided by the legislature.” Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Since this section says dissolved “in the manner” provided by the legislature, it empowers the legislature to construct any otherwise constitutional scheme for dissolution, rather than requiring the legislature to perform the dissolution. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

This section leaves the legislature free to determine the manner of dissolution of cities. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Delegation of power to dissolve cities. —

By placing the power to dissolve cities in the legislature, the constitution does not impliedly prohibit the legislature from delegating the power to others. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Applied in

City of Anchorage v. City of Anchorage, 544 P.2d 1024 (Alaska 1976).

Quoted in

Chugach Elec. Ass'n v. Anchorage, 476 P.2d 115 (Alaska 1970).

Cited in

Jefferson v. State, 527 P.2d 37 (Alaska 1974).

Section 8. Council.

The governing body of a city shall be the council.

Section 9. Charters.

The qualified voters of any borough of the first class or city of the first class may adopt, amend, or repeal a home rule charter in a manner provided by law. In the absence of such legislation, the governing body of a borough or city of the first class shall provide the procedure for the preparation and adoption or rejection of the charter. All charters, or parts or amendments of charters, shall be submitted to the qualified voters of the borough or city, and shall become effective if approved by a majority of those who vote on the specific question.

Notes to Decisions

This section and § 7 distinguished. —

The constitutional distinction between this section, granting the qualified voters of a first class city the right to adopt, amend, or repeal a home rule charter, and § 7 of this article, providing that cities may be merged, consolidated or dissolved in the manner provided by the legislature, appears to be reflective of a policy which has as its objective the placement of decisional responsibility for local problems within local control and decisional responsibility for broader problems in control of a broader community. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Power of home rule city is measured by charter. —

The meaning of this section is that, where a home rule city is concerned, the charter and not a legislative act is looked to in order to determine whether a particular power has been conferred upon the city. It would be incongruous to recognize the constitutional provision stating that a home rule city “may exercise all legislative powers not prohibited by law or by charter” (Alaska Const., art. X, § 11), and then to say that the power of a home rule city is measured by a legislative act. Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963).

Stated in

Municipality of Anchorage v. Repasky, 34 P.3d 302 (Alaska 2001).

Cited in

Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995).

Section 10. Extended Home Rule.

The legislature may extend home rule to other boroughs and cities.

Section 11. Home Rule Powers.

A home rule borough or city may exercise all legislative powers not prohibited by law or by charter.

Opinions of attorney general. —

A home rule city has the power to enact an ordinance exempting from local taxation any class of real or personal property, if such an exemption is not prohibited by the city’s home rule charter. 1969 Alas. Op. Att'y Gen. No. 1.

A home rule municipality duly incorporated under the laws of Alaska may establish and operate a local housing authority so as to fall within the definition of “public housing agencies” under the 1974 revision of the United States Housing Act of 1937, P.L. 93-388, 42 U.S.C.A. §§ 1437, 1437a(6). February 2, 1976 Op. Att’y Gen.

A Proposition 13 initiative which reads: “The municipality of _______________ may not levy and tax for any purpose in excess of one percent of the assessed value of property within the municipality” would, as a practical matter, unconstitutionally impair the obligation of existing contracts any municipality has made to borrow money by general obligation bonds, and, additionally, would directly conflict with the policy adopted by AS 29.53.055 (now see AS 29.45.100 ) to levy such taxes at such rates as are required to repay general obligation bonds; as such, it would be void. August 29, 1978 Op. Att’y Gen.

Mere inconsistency with a state statute is not sufficient to invalidate a municipal ordinance as unconstitutional. May 12, 1980 Op. Att’y Gen.

A municipality enacting a local district coastal management program may restrict or exclude a use of state concern without falling afoul of the constitutional limitations in this section on the exercise of municipal authority if that restriction or exclusion is reasonable, within the meaning of AS 46.40.070(c). May 12, 1980 Op. Att’y Gen.

Municipal authority to regulate oil and gas activities of federal lessees depends upon whether the leases are on-shore or off-shore. In the case of the former, the doctrine of federal preemption may prohibit local coastal zone ordinances from affecting any measure of control. In the case of the latter, local coastal management programs which are approved by the Alaska Coastal Policy Council and thus part of the Alaska Coastal Management Program will become one of the touchstones in the state consistency determination required by section 307(c)(3) of the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. May 12, 1980 Op. Att’y Gen.

Notes to Decisions

Purpose of section. —

This constitutional provision was adopted in order to abrogate traditional restrictions on the exercise of local legislative authority. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

A parallel provision to this section was found in former AS 29.05.020 . City of Fairbanks v. Schrock, 457 P.2d 242 (Alaska 1969).

Broad grant of authority. —

The Alaska Constitution contains a broad grant of authority to municipalities. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).

Section 9.02 of the municipality’s charter did not preclude it from levying an assessment on property owners within an improvement district for services; the language of § 9.02(a) was permissive rather than mandatory and did not expressly prohibit the municipality from using an assessment to finance services. Because the municipality enjoyed broad authority to exercise all legislative powers not prohibited by law or charter, the use of assessments to finance services was a valid exercise of its authority. L St. Invs. v. Municipality of Anchorage, 307 P.3d 965 (Alaska 2013).

Delegation of powers. —

From the provisions of this section, it follows that the right of a municipal assembly to delegate powers to govern the affairs of a municipality will not be strictly construed, for without the power to delegate duty and discretion the affairs of the city could not be carried on. Municipality of Anchorage v. Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080 (Alaska 1992).

Limits on exercise of municipal power. —

Despite wide-ranging municipal power, the exercise of that authority is not insulated from possible invalidity when a conflict with state law occurs. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).

The city of Juneau acquired greater legislative power upon becoming a home rule city, but by the very terms of the constitutional grant of legislative power to a home rule city it was prohibited from exercising legislative powers prohibited by law. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Home rule cities are subject to the same limitations with respect to contracting debts as all other political subdivisions of the state. City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Home-rule powers intended to be broadly applied. —

See Jefferson v. State, 527 P.2d 37 (Alaska 1974).

But not intended to be preeminent. —

See Jefferson v. State, 527 P.2d 37 (Alaska 1974).

Rejection of the doctrine of state preemption by “occupying the field” reaffirmed. —

See Jefferson v. State, 527 P.2d 37 (Alaska 1974).

Alaska’s home-rule provision is a “grant” or “sword” of legislative power given to the municipality to be exercised as long as it is not prohibited by law. Jefferson v. State, 527 P.2d 37 (Alaska 1974).

This section distinguished from “shield” or “protection” provisions. —

See Jefferson v. State, 527 P.2d 37 (Alaska 1974).

The test derived from Alaska’s constitutional provisions is one of prohibition, rather than traditional tests such as statewide versus local concern. Jefferson v. State, 527 P.2d 37 (Alaska 1974).

A municipal ordinance is not necessarily invalid in Alaska because it is inconsistent or in conflict with a state statute. The question rests on whether the exercise of authority has been prohibited to municipalities. Jefferson v. State, 527 P.2d 37 (Alaska 1974); City of Anchorage v. City of Anchorage, 544 P.2d 1024 (Alaska 1976); Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).

Defendant's sentence for two counts of child neglect under Anchorage, Alaska, Mun. Code 08.05.020.H.1 was not illegal because the statute did not control his sentence; the fact that the penalties for offenses designated "class A misdemeanors" under the Anchorage Municipal Code could be inconsistent with the penalties for some offenses designated as "class A misdemeanors" under state law did not, by itself, render the municipal penalties unlawful. Penetac v. Municipality of Anchorage, 436 P.3d 1089 (Alaska Ct. App. 2019).

The prohibition must be either by express terms or by implication such as where the statute and ordinance are so substantially irreconcilable that one cannot be given its substantive effect if the other is to be accorded the weight of law. Jefferson v. State, 527 P.2d 37 (Alaska 1974); City of Anchorage v. City of Anchorage, 544 P.2d 1024 (Alaska 1976); Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).

The “local activity rule” is an expedient method for resolving an impasse between state statutes which seek to further a specific policy and municipal ordinances which either directly or collaterally impede this implementation. Chugach Elec. Ass'n v. Anchorage, 476 P.2d 115 (Alaska 1970); Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

The determination of whether a home rule municipality can enforce an ordinance which conflicts with a state statute depends on whether the matter regulated is of statewide or local concern. Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

Conflicts between state statutes and municipal ordinances generally have been modulated by ruling in favor of the statutes. Chugach Elec. Ass'n v. Anchorage, 476 P.2d 115 (Alaska 1970).

Power of home rule city is measured by charter. —

The meaning of this section is that, where a home rule city is concerned, the charter and not a legislative act is looked to in order to determine whether a particular power has been conferred upon the city. It would be incongruous to recognize the constitutional provision stating that a home rule city “may exercise all legislative powers not prohibited by law or by charter” (Alaska Const., art. X, § 11), and then to say that the power of a home rule city is measured by a legislative act. Lien v. City of Ketchikan, 383 P.2d 721 (Alaska 1963).

The power to tax is a legislative power, and the city of Anchorage, as a home rule city, is authorized by the constitution to “exercise all legislative powers not prohibited by law or by charter.” City of Anchorage v. Baker, 376 P.2d 482 (Alaska 1962).

Limitation on taxes through initiative precluded. —

Since a municipality, in its legislative capacity, is prohibited from enacting a limitation on taxes to pay bonds, then the people, acting through the initiative, in their legislative capacity, are similarly precluded. Whitson v. Anchorage, 608 P.2d 759 (Alaska 1980).

An ordinance providing in effect that no supplier could provide a customer with electric power if the providing of the service required an expenditure of moneys in excess of $1,000 must yield to a determination by the Public Utilities Commission that the supplier could operate within the certified area, in light of conflicting statutes which invest in the Public Service Commission the power to regulate, to an extent permitted by law, the transmission of electric current. Chugach Elec. Ass'n v. Anchorage, 476 P.2d 115 (Alaska 1970).

Although inconsistency with state law is not normally the gauge for determining validity of a local ordinance in Alaska, under the express terms of AS 28.01.010(a) it is clear that inconsistency is the standard that governs the validity of a local ordinance regulating the operation of a motor vehicle. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

Effect of Revised Criminal Code. —

The Revised Criminal Code does not address municipal powers and therefore cannot be construed to explicitly prohibit any municipal action. Municipality of Anchorage v. Afualo, 657 P.2d 407 (Alaska Ct. App. 1983).

Municipal ordinance penalizing solicitation of prostitutes by putative customers is not prohibited by enactment of AS 11.66, art. 1 nor does it irreconcilably conflict with AS 11.66.100 which only penalizes prostitutes. Municipality of Anchorage v. Afualo, 657 P.2d 407 (Alaska Ct. App. 1983).

Ordinance banning smoking in private clubs. —

City and Borough of Juneau, Alaska, had authority to enact an ordinance banning smoking in private clubs; the ordinance did not violate privacy rights because private clubs operating in a commercial context do not enjoy privacy protections established for the home. Because smoking is not a fundamental right, strict scrutiny did not apply; the ordinance was upheld because the city had a legitimate interest in protecting the public from the dangers of second-hand tobacco smoke. Fraternal Order of Eagles v. City & Juneau-Douglas Aerie 4200, 254 P.3d 348 (Alaska 2011).

Concealment statute without specific intent. —

Because Anchorage is a home rule municipality, the municipal assembly has the power, unless expressly or impliedly prohibited by state statute, to enact a concealment statute which does not require specific intent. Smith v. Municipality of Anchorage, 652 P.2d 499 (Alaska Ct. App. 1982).

This section did not prohibit the enactment of a concealment of merchandise ordinance since statewide uniformity was not a significant purpose of this section. Smith v. Municipality of Anchorage, 652 P.2d 499 (Alaska Ct. App. 1982).

Ordinance prohibiting concealment of weapons in automobiles. —

AS 11.61.220 does not imply a legislative intent to create a privilege to conceal a weapon in an automobile, nor does it implicitly require state-wide uniformity of weapons regulations; thus, municipal ordinance interpreted as forbidding concealing of weapons in automobiles was not prohibited by AS 11.61.220 . City of Anchorage v. Richards, 654 P.2d 797 (Alaska Ct. App. 1982).

Officeholder’s eligibility for salaried appointment. —

Home rule charter section which prohibited a person who holds or has held an elective city office from being eligible for appointment to an office or for employment for which a salary is paid by the city until one year has elapsed following the term for which he was elected or appointed, unless an exception is made with the approval of four or more members of the city council, was not preempted by repealed AS 29.23.555 [see now AS 29.20.010 ] since the charter also contained a section prohibiting members of the city council from voting on matters in which they have a pecuniary interest. Acevedo v. City of N. Pole, 672 P.2d 130 (Alaska 1983).

Ordinance providing for mandatory minimum sentence. —

State law prohibits a city from enacting an ordinance providing for a mandatory minimum sentence. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Mandatory minimum sentences created by city ordinances are invalid when in conflict with state law. Wright v. Municipality of Anchorage, 590 P.2d 425 (Alaska 1979).

The mandatory aspects of the sentencing provisions of an ordinance providing for a mandatory minimum sentence on conviction of an assault of a police officer were irreconcilable with AS 12.55.080 12.55.085 , in that the former could not be given its substantive effect if the latter were to be accorded the weight of law. Such being the case, the city was prohibited by this section from requiring the imposition and execution of mandatory minimum sentences for violations of the ordinance. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

The fact that the state itself has the power to enact specific exceptions to AS 12.55.080 and 12.55.085 fails to prove that a home-rule city possesses the same power. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Making assignation a criminal offense. —

There is no legislative enactment in Alaska that expressly prohibits a home rule city from making assignation a criminal offense. Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969).

Requiring school system to participate in centralized accounting. —

A home rule borough may not require its school system to participate in centralized accounting without the statutorily required approval of the school board. Macauley v. Hildebrand, 491 P.2d 120 (Alaska 1971).

When a municipal charter is silent as to the mode of decision on a matter committed to the legislative body, ordinance procedures are not ordinarily required. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

Notice provisions for tort claims against municipalities. —

Alaska Statutes 09.65.070, authorizing actions against municipalities, impliedly prohibits municipalities from requiring a potential plaintiff to submit notice of tort claims, as a condition to bringing an action, within a period shorter than the period provided by the statute of limitations. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978); DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978).

A city charter provision which barred actions against the city unless the required notice of claims had been filed within 120 days after the injury occurred was invalid since the practical effect of the provision was to nullify the state legislature’s establishment of a two-year period for commencing tort actions. That is, even though the two years permitted for commencing an action would still have applied through AS 09.65.070 , the right to bring an action in Alaska’s courts would have been contingent upon giving a notice of claim within a substantially shorter period of time. If the injured person had failed to give notice within the prescribed time, he would have been barred from pursuing his remedy in state courts, despite the fact that his action would have been timely under the two-year statute of limitations. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978); DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978).

The Public Employment Relations Act, AS 23.40.070 et seq., is expressly made applicable to home-rule municipalities, and thus municipalities are impliedly prohibited from refusing to negotiate with organizations selected by employees unless the exemption was timely enacted. State v. City of Petersburg, 538 P.2d 263 (Alaska 1975), limited, Sitka v. International Bhd. of Elec. Workers, 653 P.2d 332 (Alaska 1982).

Applying a liberal construction to the powers of local government cannot override the express declaration of policy made a part of the Public Employment Relations Act when coupled with considerations of the impact of the repeal of AS 23.40.010 and the different language used in the 1972 exemption provision, ch. 113, § 4, SLA 1972. State v. City of Petersburg, 538 P.2d 263 (Alaska 1975), limited, Sitka v. International Bhd. of Elec. Workers, 653 P.2d 332 (Alaska 1982).

State railroad not exempt from local zoning laws. This section, which was adopted in order to abrogate traditional restrictions on the exercise of local legislative authority, does not make the state railroad immune to local zoning laws. Native Village of Eklutna v. Alaska R.R. Corp., 87 P.3d 41 (Alaska 2004).

The city of Anchorage is not an office, department or agency of the executive branch of the state government under Alaska Const., art. III, § 22 which deals with the executive power of the state. It is a home rule city with maximum local self-government, organized under this article of the constitution relating to local government. Wellmix, Inc. v. Anchorage, 471 P.2d 408 (Alaska 1970).

Applied in

Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978); Allstate Ins. Co. v. Municipality of Anchorage, 599 P.2d 140 (Alaska 1979); Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Quoted in

State v. Browder, 486 P.2d 925 (Alaska 1971); Roderick v. Sullivan, 528 P.2d 450 (Alaska 1974); Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980); Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Stated in

Municipality of Anchorage v. Repasky, 34 P.3d 302 (Alaska 2001).

Cited in

Keane v. Local Boundary Comm'n, 893 P.2d 1239 (Alaska 1995); DeVilbiss v. Matanuska-Susitna Borough, 356 P.3d 290 (Alaska 2015).

Section 12. Boundaries.

A local boundary commission or board shall be established by law in the executive branch of the state government. The commission or board may consider any proposed local government boundary change. It may present proposed changes to the legislature during the first ten days of any regular session. The change shall become effective forty-five days after presentation or at the end of the session, whichever is earlier, unless disapproved by a resolution concurred in by a majority of the members of each house. The commission or board, subject to law, may establish procedures whereby boundaries may be adjusted by local action.

Cross references. —

For provisions concerning the local boundary commission, see AS 44.33.810 44.33.828 .

Notes to Decisions

The intention of this section and its implementing statute, former AS 44.47.567 [now AS 44.33.812 ], was to provide an objective administrative body to make state-level decisions regarding local boundary changes, thus avoiding the chance that a small, self-interested group could stand in the way of boundary changes which were in the public interest. Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

The advantage of the method proposed, in the words of the committee on local government, “ . . . lies in placing the process at a level where area-wide or state-wide needs can be taken into account. By placing authority in this third-party, arguments for and against boundary change can be analyzed objectively.” Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska), cert. denied, 371 U.S. 5, 83 S. Ct. 39, 9 L. Ed. 2d 49 (U.S. 1962).

The relevant minutes of the meetings of the committee on local government show clearly the concept that was in mind when this section was being considered: That local political decisions do not usually create proper boundaries and that boundaries should be established at the state level. Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska), cert. denied, 371 U.S. 5, 83 S. Ct. 39, 9 L. Ed. 2d 49 (U.S. 1962).

The concept that was in mind when this section was being considered by the constitutional convention was that local political decisions do not usually create proper boundaries and that boundaries should be established at the state level. Oesau v. City of Dillingham, 439 P.2d 180 (Alaska 1968).

The framers of the Alaska Constitution thought that local political decisions do not usually create proper boundaries and that boundaries should be established at the state level. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

The basic purpose for creating the boundary commission and conferring upon it the powers that it possesses was to obviate the type of situation where there was a controversy over municipal boundaries which apparently could not be settled at the local level. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

This policy does not reach creation of an organized borough from the nonfunctioning unorganized borough. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

Carving a new unit of government from the unorganized borough generates no controversy between governments with competing economic and political interests. The conflicts accompanying boundary adjustments between two functioning governments which must be submitted to the legislature under this section do not afflict mere incorporation. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

When method became operative. —

The method for making boundary changes contemplated by this section was operative upon the enactment of the 1959 statutes creating a local boundary commission (SLA 1959, ch. 64, § 7) and conferring powers upon it (SLA 1960, ch. 45). Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska), cert. denied, 371 U.S. 5, 83 S. Ct. 39, 9 L. Ed. 2d 49 (U.S. 1962).

This section established two methods by which local boundaries might be changed: (1) by direct action of the local boundary commission subject to legislative disapproval, and (2) by establishment by the commission of procedures for the adjustment of boundaries by local action. Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

The local action provision of this section has been implemented by legislation (former AS 29.68.010 (see now AS 29.06.040 )) and by administrative action ( 19 AAC § 15.010 et seq.). Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

Section implemented by AS 44.47.567. —

See Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

Provisions of AS 44.47.567 and 44.47.583. —

By AS 44.47.567 and 44.47.583, it is provided that the commission must make studies of local government boundary problems, develop proposed standards and procedures for changing boundaries, and consider boundary changes requested of it by political subdivisions. The commission may conduct hearings on boundary changes and present proposed changes to the legislature. The change becomes effective unless the legislature disapproves; legislative silence permits the change. United States Smelting, Ref. & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140 (Alaska 1971).

This section empowers the legislature to veto commission actions. United States Smelting, Ref. & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140 (Alaska 1971).

Legislative review for compliance. —

This section does nothing to compel the legislature to review for compliance with its own requirements. United States Smelting, Ref. & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140 (Alaska 1971).

This section and former AS 44.47.583 [now AS 44.33.828 ] do not make the decision as to whether the commission has complied with the law exclusively legislative. United States Smelting, Ref. & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140 (Alaska 1971).

Veto power defined. —

The legislative veto power granted in Alaska Const., art. III, § 23 and this section, is the power to change statutes, not rule-making power, which is the power to interpret and implement statutes. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Legislature handicapped in absence of known standards governing change of boundary lines. —

Under Alaska’s constitution, the supreme court has the duty of insuring that administrative action complies with the laws of Alaska. Absent known standards governing the changing of local boundary lines, the legislature’s ability to make rational decisions as to whether to approve or disapprove proposed local boundary changes of the commission is seriously handicapped. United States Smelting, Ref. & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140 (Alaska 1971).

Election to choose boundary prohibited. —

A municipality could not ignore a Local Boundary Commission decision by holding an election permitting voters to choose between two boundaries, which essentially allowed the electorate to establish the boundary without regard to the commission’s action on reconsideration. Lake & Peninsula Borough v. Local Boundary Comm'n, 885 P.2d 1059 (Alaska 1994).

Annexation of community without consent of residents. —

Residents of a community have no constitutionally protected interest in its existence as a separate governmental unit. Hence, the legislature may provide for the annexation of a community without its residents’ consent. Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Standing to contest annexation. —

An aggrieved property owner in an area to be annexed has standing to contest the annexation. United States Smelting, Ref. & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140 (Alaska 1971).

Administratively selected method of annexation is controlling. —

The selection of annexation method made by the commission and approved by the legislature is controlling. Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

The policy decision as to the mode of annexation is an exercise of lawfully vested administrative discretion which the supreme court will review only to determine if administrative, legislative, or constitutional mandates were disobeyed or if the action constituted an abuse of discretion. Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

Dissolution of utility district upon annexation. —

The provision of former AS 42.35.370 providing for dissolution of a utility district with the consent of the voters when “the whole or the integral part of a district becomes annexed to an incorporated city” had application only where annexation took place under the petition-election procedure of former AS 29.70.010 to 29.70.240, and had no application where annexation takes place under a different method established by this section. Fairview Pub. Util. Dist. v. City of Anchorage, 368 P.2d 540 (Alaska), cert. denied, 371 U.S. 5, 83 S. Ct. 39, 9 L. Ed. 2d 49 (U.S. 1962).

Submission of an accepted incorporation petition to the legislature is not required by the state constitution. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

The convention debating adoption of this article simply did not address the question of whether incorporation petitions must be submitted to the legislature. Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92 (Alaska 1974).

Extension of city services. —

All annexations will have the purpose and effect, in part, of extending city services. Port Valdez Co. v. Valdez, 522 P.2d 1147 (Alaska 1974).

Wood River made part of city of Dillingham. —

When the legislature failed to disapprove of the commission’s proposal, the commission’s local boundary change, which consisted of the abolition of the boundary of Wood River and the confirmation of the boundary of the city of Dillingham, had the effect of making Wood River a part of the city of Dillingham. When the boundary commission’s proposal for boundary change become effective, the city of Wood River was dissolved, even though the statutory procedures for dissolution of cities were not followed. Oesau v. City of Dillingham, 439 P.2d 180 (Alaska 1968).

Quoted in

Graham v. City of Anchorage, 364 P.2d 57 (Alaska 1961).

Stated in

Walters v. Cease, 394 P.2d 670 (Alaska 1964).

Cited in

Pavlik v. State, Dep't of Cmty. & Reg'l Affairs, 637 P.2d 1045 (Alaska 1981).

Section 13. Agreements; Transfer of Powers.

Agreements, including those for cooperative or joint administration of any functions or powers, may be made by any local government with any other local government, with the State, or with the United States, unless otherwise provided by law or charter. A city may transfer to the borough in which it is located any of its powers or functions unless prohibited by law or charter, and may in like manner revoke the transfer.

Notes to Decisions

Quoted in

Juneau v. Hixson, 373 P.2d 743 (Alaska 1962).

Stated in

Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971); City of Homer v. Gangl, 650 P.2d 396 (Alaska 1982).

Section 14. Local Government Agency.

An agency shall be established by law in the executive branch of the state government to advise and assist local governments. It shall review their activities, collect and publish local government information, and perform other duties prescribed by law.

Cross references. —

The agency established in the executive branch to advise and assist local governments is the Department of Commerce, Community, and Economic Development (AS 44.33).

Notes to Decisions

Stated in

Walters v. Cease, 394 P.2d 670 (Alaska 1964).

Section 15. Special Service Districts.

Special service districts existing at the time a borough is organized shall be integrated with the government of the borough as provided by law.

Article XI Initiative, Referendum, and Recall

Section 1. Initiative and Referendum.

The people may propose and enact laws by the initiative, and approve or reject acts of the legislature by the referendum.

Cross references. —

For restrictions on initiatives, see Alaska Const., art. XI, § 7.

Opinions of attorney general. —

The word “acts,” as used in the referendum provisions of this article, refers to an entire act of the legislature and not to sections of acts. 1963 Alas. Op. Att'y Gen. No. 18.

The referendum is a veto power analogous to the veto power vested in the governor by Alaska Const., art. II, § 15. 1963 Alas. Op. Att'y Gen. No. 18.

The referendum and the veto power serve similar functions in legislative process; hence, the limitations of one apply to the other except as distinctions are specified in the constitution. 1963 Alas. Op. Att'y Gen. No. 18.

The purpose of the veto is to prevent the adoption of the undesirable legislation; the veto power is not a power to change the effect of proposed laws or to do anything concerning them except to approve or disapprove them as a whole. 1963 Alas. Op. Att'y Gen. No. 18.

The veto power may be exercised only against entire bills, and it may not be exercised upon sections of bills except in the case of appropriation bills. 1963 Alas. Op. Att'y Gen. No. 18.

Were the referendum interpreted as extending to sections of act, its avowed purpose to approve or disapprove acts would be frustrated. It would in many cases result in exactly that which it is not intended to do. It would change the effect of a proposed law, and frustrate the legislative purpose. 1963 Alas. Op. Att'y Gen. No. 18.

An initiative may be used to repeal a law since to read this section so as to sever the power to repeal from the initiative, thus eliminating popular votes on previous initiatives, on statutes not subject to referendum, i.e., those for which the time limit has passed, and on parts of statutes as opposed to an entire enactment, is illogical given the very intent, subject to express exceptions, to vest the voting public with legislative power equal to the legislature’s power. April 14, 1975 Op. Att’y Gen.

In the context of this article, the referendum has a restricted scope of operation: First, a referendum may only reject “acts of the legislature” and not acts by initiative; second, a referendum may address only acts passed by an immediately preceding legislative session; and third, a referendum may reject only entire acts of the legislature and not sections thereof. Thus, unless a law sought to be rejected falls within the ambit of the “acts” described, a referendum is unavailable. April 14, 1975 Op. Att’y Gen.

Notes to Decisions

Analysis

I.General Consideration

Liberal construction. —

In matters of initiative and referendum, the people are exercising a power reserved to them by the constitution and laws of the state, and the constitutional and statutory provisions under which they proceed should be liberally construed. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

The right of initiative and referendum, sometimes referred to as direct legislation, should be liberally construed to permit exercise of that right. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

Scope of initiative power. —

The people’s power to enact legislation by initiative is not greater than that of the legislature. Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994).

Section does not apply to appropriations. —

The Alaska Constitution withdraws from the people the right to initiative and referendum with respect to appropriations. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

Single subject rule not violated. —

It was error to find a ballot initiative violated the single-subject rule because (1) initiatives were not subject to a stricter one-subject standard than legislation, (2) the initiative's provisions embraced the single subject of election reform and shared the nexus of election administration, (3) the initiative's text showed no transparent attempt to garner voter support through completely unrelated provisions, and (4) nothing suggested the initiative's title was misleading or the initiative was so unclear that the initiative gave rise to a concern about confusion, fraud, or inadvertence. Meyer v. Alaskans for Better Elections, 465 P.3d 477 (Alaska 2020).

Not applicable to municipal initiatives. —

When an initiative is local, and not statewide, the power to initiate it is directly derived from AS 29.26.100 , not this provision. Griswold v. City of Homer, 186 P.3d 558 (Alaska 2008).

Applied in

Walters v. Cease, 394 P.2d 670 (Alaska 1964); Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003); State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004); Lieutenant Governor of Alaska v. Alaska Fisheries Conservation Alliance, Inc., 363 P.3d 105 (Alaska 2015).

Quoted in

Alaska Conservative Political Action Comm. v. Municipality of Anchorage, 745 P.2d 936 (Alaska 1987); Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991); Swetzof v. Philemonoff, 203 P.3d 471 (Alaska 2009); Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009).

Cited in

Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Res. Dev. Council for Alaska, Inc. v. Vote Yes for Alaska's Fair Share, 494 P.3d 541 (Alaska 2021).

II.Initiative

The initiative may be used only to enact laws. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

And not for the purpose of constitutional amendment. —

See Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Nor to alter number of votes needed to enact law. —

A proposed initiative requiring a super-majority legislative vote to enact or increase taxes was properly refused, where Alaska Const. art. II, § 14 prohibited the enactment of any law that proposed to modify the majority-vote standard, and thus, the proposed initiative failed to comply with constitutional provisions regulating initiatives. Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

The subject of the initiative must constitute such legislation as the legislative body to which it is directed has the power to enact. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

Single subject standard is enacted at AS 15.45.040 with respect to initiatives; whether this limitation is within the legislature’s power under Alaska Const., art. XI, is questionable; but Alaska Const., art. XII, § 11, makes the law making power equal, and the restriction in Alaska Const., art. II, § 13, therefore, applies to initiatives. Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

Remedy for defective petition. —

When faced with statewide initiative petitions that have been circulated with a defective summary, a court must consider the nature and magnitude of the misleading statement or omission, the likelihood and extent of petition-signer inadvertence, the hardship to initiative sponsors that invalidating signatures would cause, and the hardship to the initiative’s opponents that permitting the initiative to go forward would cause. Planned Parenthood v. Campbell, 232 P.3d 725 (Alaska 2010).

Initiative for secession from United States denied certification. —

Under the authority of AS 15.45.070 and 15.45.080 , the lieutenant governor properly denied certification of a ballot initiative under this section and Alaska Const. art. XII, § 11, calling for Alaska’s secession from the United States because, although neither the federal nor state constitutions expressly prohibited secession, U.S. Supreme Court had found it clearly unconstitutional and the state was thus bound under the Supremacy Clause, U.S. Const. art. VI, cl. 2; thus, pursuant to codification of constitutional provisions of AS 15.45.010 , 15.45.040 , the lieutenant governor was permitted to deny certification, and the Ninth and Tenth Amendments to the U.S. Constitution did not permit secession because the state could not reserve a power that it had never possessed. Kohlhaas v. State, 147 P.3d 714 (Alaska 2006).

Where appellant proposed a ballot initiative calling for a statewide vote on whether Alaska should secede from the United States, the lieutenant governor correctly denied certification of the initiative under AS 15.45.080 . Secession from the union was clearly unconstitutional, and the people of Alaska could not effect constitutional change through the initiative process. Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Initiative held not an appropriation. —

Superior court properly granted the State summary judgment in contestants’ action challenging the certification of a ballot initiative because the initiative was not an appropriation since the legislature would retain ultimate control over allocation of state assets; the initiative ultimately gave the legislature more discretion whether to approve a particular mining project, and it did not require the sale of any public assets or voter approval for any expenditure of public funds. Hughes v. Treadwell, 341 P.3d 1121 (Alaska 2015).

Subject matter of wildlife management is not clearly inapplicable to the initiative process, based upon the language and history of the constitutional provisions regarding the initiative process. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Prohibiting use of wolf trap snares. —

Since the legislature does not have exclusive law-making powers over natural resources issues merely because of the state’s management role over wildlife set forth in Alaska Const., art. VIII, the issue of prohibiting the use of snares to trap wolves is not clearly inapplicable to the initiative process. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Initiative for protection of wild salmon and waters. —

Initiative that would require legislative approval for large-scale metallic sulfide mining operations located within a bay’s watershed permissibly distinguished the watershed and its salmon fishery and did not violate the Constitution’s prohibition on local or special legislation; the bay’s unique and significant biological and economic characteristics were of great interest to the region and to the State as a whole, and the initiative’s purpose, to protect wild salmon and waters, was legitimate. Hughes v. Treadwell, 341 P.3d 1121 (Alaska 2015).

Initiative that involved municipality’s issuance of taxicab permits, which citizens sought to have placed on a ballot, was not a limitation on appropriation by an initiative; therefore, the initiative did not violate Alaska Const. art. XI, § 7. Anchorage Citizens for Taxi Reform v. Municipality of Anchorage, 151 P.3d 418 (Alaska 2006).

Refusal to certify initiative proposal. —

Borough clerk improperly refused to certify a resident’s application for an initiative petition for mayoral term limits on the ground that she believed the proposed ordinance to be unenforceable, when the constitutionality of such term limits had not yet been addressed, because such refusal deprived voters of access to the initiative process. Kodiak Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003).

Lieutenant governor properly refused to certify an initiative that would ban all abortions in Alaska because the lieutenant governor has the authority to deny certification of an initiative if controlling authority shows the initiative’s unconstitutionality. Here, the initiative was clearly unconstitutional under controlling authority barring states from banning all abortions. The content of the initiative was beyond the power of the legislature to enact. Desjarlais v. State, 300 P.3d 900 (Alaska 2013).

III.Referendum

Referendum does not suspend effect of act. —

The natural import of the provisions of this article and art. II of the Alaska Constitution is that the filing of a referendum petition does not suspend the effect or operation of the act referred. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Legislative nature of ordinance makes it subject to referendum. —

City’s labor relations ordinance was legislative and, therefore, the proper subject of a referendum, because the ordinance (1) made new law by returning to prior labor relations policies, (2) was permanent, as the ordinance did not have to be impervious to change, (3) was general, as the ordinance applied to all public unions and union members, (4) declared new public policies and provided ways and means to accomplish the policies, and (5) was not rendered administrative by dealing with the intricacies of labor relations, as the ordinance addressed broad concepts that voters could readily understand. Municipality of Anchorage v. Holleman, 321 P.3d 378 (Alaska 2014).

Not precluded by city’s home-rule status. —

Alaska Statutes 23.40.255(a), Anchorage, Alaska, Municipal Charter arts. V, § 5.06 and II(9), and a city’s home-rule status did not preempt sponsors’ referendum on the city’s labor relations ordinance because these did not allow the city to exclusively legislate in the area of labor relations to the exclusion of citizens’ rights of initiative and referendum. Municipality of Anchorage v. Holleman, 321 P.3d 378 (Alaska 2014).

Rejected act remains in effect for thirty days after certification of election returns. —

If an act is rejected by the people in a referendum election, it nevertheless remains in full force and effect until thirty days after certification of the election returns by the secretary of state [now lieutenant governor]. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Section 2. Application.

An initiative or referendum is proposed by an application containing the bill to be initiated or the act to be referred. The application shall be signed by not less than one hundred qualified voters as sponsors, and shall be filed with the lieutenant governor. If he finds it in proper form he shall so certify. Denial of certification shall be subject to judicial review.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state” in the second sentence.

Opinions of attorney general. —

The word “form” is the antithesis of the word “substance.” Substance is that which is essential in content and goes to the merits of the issue. Substance pertains to matters which affect the basic rights of parties. 1959 Alas. Op. Att'y Gen. No. 35.

The lieutenant governor acts in a ministerial capacity. 1959 Alas. Op. Att'y Gen. No. 35.

The lieutenant governor can make such inquiry and investigation as to the voting qualifications of individual signers of an initiative application as appears reasonably necessary in his discretion, but he may look only at form and not the substance of an application. 1959 Alas. Op. Att'y Gen. No. 35. But see Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974), overruled, McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

The requirement that the lieutenant governor certify as to the form of the application under this section would be meaningless if the general provisions of Alaska Const., art. II, § 13 did not apply. There would be nothing to certify to since the article on initiative sets out no particular form of an initiative. 1959 Alas. Op. Att'y Gen. No. 36.

The intent of this section is obviously to insure that the proposed initiative or referendum has some substantial support before the state is subjected to the expense involved in printing of formal petitions regarding the measure. 1963 Alas. Op. Att'y Gen. No. 17.

This article is rather unique in that it provides for two separate stages in the preparing of an initiative or referendum for submission to the electorate. Before circulating a petition, the proponents of an initiative or referendum must first circulate an application “containing the bill to be initiated or the act to be referred” and obtain the signatures of not less than one hundred qualified voters as sponsors of the application. 1963 Alas. Op. Att'y Gen. No. 17.

The state legislature has interpreted and implemented this section by passing a statute (AS 15.45.270 ) requiring the application for a referendum petition to include the act to be referred. 1963 Alas. Op. Att'y Gen. No. 17.

The constitution does not permit a summary of an act to be substituted for a copy of the act in the application. 1963 Alas. Op. Att'y Gen. No. 17.

The application for referendum petition submitted was not in proper form and it was necessary for the proponents of the measure to prepare an application containing the text of ch. 52, SLA 1963, and secure the necessary number of signatures to this application before they could validly prepare a petition for circulation under Alaska Const., art. XI, § 3. 1963 Alas. Op. Att'y Gen. No. 17.

Where ch. 52, SLA 1963, contained seven sections affecting many different sections of the Alaska Statutes, it was not adequately described by the words “legislation enacted by the last legislative assembly pertaining to the formation of mandatory boroughs in the State of Alaska.” 1963 Alas. Op. Att'y Gen. No. 17.

Notes to Decisions

Initiative in proper form. —

Supreme court declined the State's invitation to interpret an initiative's effect on the Public Records Act before voters had the opportunity to decide whether to adopt the initiative because the initiative was in proper form; the lieutenant governor certified the initiative petition, and the attorney general's legal review concluded that the initiative did not include any of the prohibited subjects and was not clearly unconstitutional under existing authority. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Single subject rule not violated. —

It was error to find a ballot initiative violated the single-subject rule because (1) initiatives were not subject to a stricter one-subject standard than legislation, (2) the initiative's provisions embraced the single subject of election reform and shared the nexus of election administration, (3) the initiative's text showed no transparent attempt to garner voter support through completely unrelated provisions, and (4) nothing suggested the initiative's title was misleading or the initiative was so unclear that the initiative gave rise to a concern about confusion, fraud, or inadvertence. Meyer v. Alaskans for Better Elections, 465 P.3d 477 (Alaska 2020).

Sufficiency of summary. —

Ballot summary's statement was inaccurate and misleading. It misled voters about a section's effect since the summary did not disclose disputed and unripe implementation questions that other agencies would resolve; until the proper agencies reviewed the section, the lieutenant governor's assessment was speculative and improperly weighed in on its interpretation. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Ballot summary's statement was an inaccurate and misleading statement because a section of the initiative directly conflicted with AS 40.25.100 , making tax information in the Department of Revenue's possession confidential; the initiative further conflicted with AS 43.05.230 , and the initiative's text did not explain how it would interact with those existing statutes. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Quoted in

Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Stated in

Burgess v. Miller, 654 P.2d 273 (Alaska 1982).

Cited in

Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d 906 (Alaska 2000); Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Section 3. Petition.

After certification of the application, a petition containing a summary of the subject matter shall be prepared by the lieutenant governor for circulation by the sponsors. If signed by qualified voters who are equal in number to at least ten percent of those who voted in the preceding general election, who are resident in at least three-fourths of the house districts of the State, and who, in each of those house districts, are equal in number to at least seven percent of those who voted in the preceding general election in the house district, it may be filed with the lieutenant governor.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state” in the first and second sentences.

The amendment effective January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)), substituted “house districts” for “election districts” in the last sentence.

The amendment effective January 2, 2005 (23rd Legislature’s HJR 5), rewrote the second sentence.

Opinions of attorney general. —

An initiative petition which, on its face, is seen to contain an insufficient number of signatures may not be filed and later supplemented to cure the deficiency. February 1, 1984 Op. Att’y Gen.

An initiative petition must be sufficient on its face before it may be accepted for filing, i.e., it must have the requisite number of purportedly valid signatures before it may be filed in the office of the attorney general; a petition deficient in this respect should be returned to the sponsors. February 1, 1984 Op. Att’y Gen.

Former AS 15.45.170 authorizes a supplementary petition, but that privilege is afforded only when a petition, believed to contain a sufficient number of signatures of qualified voters, is later found to contain signatures of persons who are not qualified voters; in such a case, the latent defect of numbers may be cured, but where the defect is patent, the petition may not be accepted for filing. February 1, 1984 Op. Att’y Gen.

Notes to Decisions

Sufficiency of summary. —

In preparing summary of subject matter of proposed bill, the lieutenant governor is entitled to rely on the premise that readers of the summary understand that in the absence of explicit language to the contrary, state initiatives are intended to change state law and bind the state government, not federal law and the federal government; thus he need not give “special” reminders to the voters regarding the scope of a state initiative. Burgess v. Miller, 654 P.2d 273 (Alaska 1982).

Summary’s prediction as to proposed bill’s effect was amply supported by text of bill, consequently the summary’s use of the language “would prevent” was neither misleading nor inaccurate. Burgess v. Miller, 654 P.2d 273 (Alaska 1982).

Challenger did not meet its burden of showing the inadequacy of the summary prepared by the lieutenant governor for the proposed initiative; the summary provided an accurate depiction of the scope and substance of the initiative, and the superior court correctly concluded that it was a fair, true, neutral, and impartial explanation of the main features of the initiative’s contents. Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009), overruled in part, Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Ballot summary's statement was an inaccurate and misleading statement because a section of the initiative directly conflicted with AS 40.25.100 , making tax information in the Department of Revenue's possession confidential; the initiative further conflicted with AS 43.05.230 , and the initiative's text did not explain how it would interact with those existing statutes. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Ballot summary's statement was inaccurate and misleading. It misled voters about a section's effect since the summary did not disclose disputed and unripe implementation questions that other agencies would resolve; until the proper agencies reviewed the section, the lieutenant governor's assessment was speculative and improperly weighed in on its interpretation. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Remedy for defective petition. —

When faced with statewide initiative petitions that have been circulated with a defective summary, a court must consider the nature and magnitude of the misleading statement or omission, the likelihood and extent of petition-signer inadvertence, the hardship to initiative sponsors that invalidating signatures would cause, and the hardship to the initiative’s opponents that permitting the initiative to go forward would cause. Planned Parenthood v. Campbell, 232 P.3d 725 (Alaska 2010).

Quoted in

Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Cited in

Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992).

Section 4. Initiative Election.

An initiative petition may be filed at any time. The lieutenant governor shall prepare a ballot title and proposition summarizing the proposed law, and shall place them on the ballot for the first statewide election held more than one hundred twenty days after adjournment of the legislative session following the filing. If, before the election, substantially the same measure has been enacted, the petition is void.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2 (1970)), substituted “lieutenant governor” for “secretary of state” in the second sentence.

Opinions of attorney general. —

An initiative petition must be filed before the start of the legislative session in order to be presented to the electorate at the first state-wide election held 120 or more days after the conclusion of that session. February 1, 1984 Op. Att’y Gen.

Notes to Decisions

This section must be interpreted broadly and not narrowly as to the scope of legislative power. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Purpose of amending section prior to its adoption. —

As originally introduced, this section provided that laws proposed by the initiative shall be submitted to the voters “at an election not later than 180 days after the adjournment of the legislative session following the filing of the petition.” This proposal was amended before adoption to read as it does now. The purpose of the amendment, as explained by one of its sponsors, was to do away with the high costs of special elections for such matters (estimated at $40,000), by requiring that the initiative proposition go on the ballot at a statewide election, whether it be primary or a general election or a special election called for some other purpose. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Placement on statewide election ballot. —

An initiative proposition may be placed on the ballot for the first available statewide election held more than 120 days after adjournment of the legislative session following its filing because of special circumstances. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

This section was not designed with the objective of depriving the people of the right to vote if by reason of circumstances, such as an injunction preventing the secretary of state [now lieutenant governor] from placing an initiative proposition on the ballot, it became impossible to submit the proposition at the “first” statewide election held within the prescribed time. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

The words “substantial” or “substantially” are relative, inexact terms. Their meaning is quite elusive. The meaning of such terms can be derived only by reference to all the circumstances surrounding the context in which they are used. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

The term “substantially the same measure” must be viewed against the total structure contemplated in this article in the matter of direct legislation. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

The Alaska Constitution contains no explicit limitation on the legislature’s power to amend an initiative enacted by the voters, but it does contain such a limitation on the legislature’s power to avoid a proposed initiative. Legislation designed to avoid a vote on a proposed initiative must be “substantially the same” as the initiative. The history related to the adoption of article 6, section 4 reflects the framers’ concern that the legislature be given only “the power to amend and not the power to destroy.” Thus, even amendments to popularly-initiated legislation must still “effectuate[ ] the intent of the electorate,” and an amendment that “so vitiates an act passed by initiative as to constitute its repeal“ is not acceptable. State v. Trust the People, 113 P.3d 613 (Alaska 2005).

When substantial similarity exists. —

If in the main the legislative act achieves the same general purpose as the initiative, if the legislative act accomplishes that purpose by means or systems which are fairly comparable, then substantial similarity exists. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

It is not necessary that the two measures correspond in minor particulars, or even as to all major features, if the subject matter is necessarily complex or if it requires comprehensive treatment. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Legislative discretion. —

It is clear that the legislative act need not conform to the initiative in all respects, and that the framers intended that the legislature should have some discretion in deciding how far the legislative act should differ from the provisions of the initiative. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

The broader the reach of the subject matter, the more latitude must be allowed the legislature to vary from the particular features of the initiative. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Legislature may vary terms of initiative by amendment. —

The constitution vests broad authority in the legislature to vary the terms of an initiated law, after its adoption, by the process of amendment. This power amounts to a check or balance against the initiative process. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

And by enactment covering same subject as initiative. —

If the legislature has broad power of amendment, it follows that it has broad power to change an initiative by an enactment covering the same subject as the initiated measure. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Determining whether act and initiative are “substantially the same.” —

This section does not expressly confer on any branch or agency the power to determine whether an act and an initiative are “substantially the same.” Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Power of legislature to enact method for such determination. —

This section and Alaska Const., art. V, § 3, and art. XII, § 11, when read in harmony, give the legislature the power to enact a method of determining whether an act and an initiative are “substantially the same,” as used in this section. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

AS 15.45.210 enacted to effectuate this section. —

Alaska Statute 15.45.210, delegating authority to the lieutenant governor to determine whether an act and an initiative are substantially the same, was enacted to effectuate this section. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

The delegation of power in AS 15.45.210 is both reasonable and constitutional. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Delegation to the lieutenant governor of the authority to determine whether an act and an initiative are substantially the same is based on sound, practical considerations, is to a logical governmental officer, and is definitionally narrow. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Sufficiency of summary. —

Ballot summary's statement was inaccurate and misleading. It misled voters about a section's effect since the summary did not disclose disputed and unripe implementation questions that other agencies would resolve; until the proper agencies reviewed the section, the lieutenant governor's assessment was speculative and improperly weighed in on its interpretation. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Ballot summary's statement was an inaccurate and misleading statement because a section of the initiative directly conflicted with AS 40.25.100 , making tax information in the Department of Revenue's possession confidential; the initiative further conflicted with AS 43.05.230 , and the initiative's text did not explain how it would interact with those existing statutes. Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Quoted in

Burgess v. Miller, 654 P.2d 273 (Alaska 1982).

Cited in

Walters v. Cease, 388 P.2d 263 (Alaska 1964); Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985); Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Anchorage Baptist Temple v. Coonrod, 166 P.3d 29 (Alaska 2007).

Section 5. Referendum Election.

A referendum petition may be filed only within ninety days after adjournment of the legislative session at which the act was passed. The lieutenant governor shall prepare a ballot title and proposition summarizing the act and shall place them on the ballot for the first statewide election held more than one hundred eighty days after adjournment of that session.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2(1970)), substituted “lieutenant governor” for “secretary of state” near the beginning of the second sentence.

Notes to Decisions

Act may be effective several months prior to commencement of 90-day period. —

An act of the legislature with an immediate effective date could conceivably be signed into law early in a legislative session, and would be in actual operative effect for several months prior to the commencement of the 90-day period in which a petition for referendum may be filed under this section. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Section 6. Enactment.

If a majority of the votes cast on the proposition favor its adoption, the initiated measure is enacted. If a majority of the votes cast on the proposition favor the rejection of an act referred, it is rejected. The lieutenant governor shall certify the election returns. An initiated law becomes effective ninety days after certification, is not subject to veto, and may not be repealed by the legislature within two years of its effective date. It may be amended at any time. An act rejected by referendum is void thirty days after certification. Additional procedures for the initiative and referendum may be prescribed by law.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2(1970)), substituted “lieutenant governor” for “secretary of state” near the beginning of the third sentence.

Opinions of attorney general. —

The constitutional specification as to effective date is plain on its face. An initiative becomes effective 90 days after the date on which the lieutenant governor certifies the election returns approving it. August 19, 1975 Op. Att’y Gen.

Only repeal is prohibited by the state constitution, not amendments. August 19, 1975 Op. Att’y Gen.

The legislature could amend the capital move initiative, initiative No. 1, at any time to alter or delete: (1) the requirement that the capital site contain no less than 100 square miles of state land or lands available to the state at no cost and (2) the requirement that the site selected by more than 30 miles from Anchorage or Fairbanks. August 19, 1975 Op. Att’y Gen.

Notes to Decisions

Legislature may vary terms of initiative by amendment. —

The constitution vests broad authority in the legislature to vary the terms of an initiated law, after its adoption, by the process of amendment. This power amounts to a check or balance against the initiative process. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

The legislature is vested with broad authority to amend laws enacted by the people through the initiative process. Warren v. Thomas, 568 P.2d 400 (Alaska 1977).

And by enactment covering same subject as initiative. —

If the legislature has broad power of amendment, it follows that it has broad power to change an initiative by an enactment covering the same subject matter as the initiated measure. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

What constitutes repeal. —

Amendments to an initiated law that only reduced the penalties for violation of the law and clarified some of the language did not constitute a repeal of the initiated law. Warren v. Thomas, 568 P.2d 400 (Alaska 1977).

AS 15.45.440 adopted almost verbatim the language of this section for establishing the time when an act rejected by referendum shall become void. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Act not suspended between its effective date and its rejection by referendum. —

In the light of the clear wording of this section and Alaska Const., art. II, §§ 17 and 18, the framers of the constitution and the people who adopted it intended that the effectiveness of an act passed by the legislature should not be suspended during the period between its effective date and its rejection by the referendum. If they had intended otherwise they would have expressly so provided in the constitution. Walters v. Cease, 388 P.2d 263 (Alaska 1964).

Procedures for placement of initiative on election ballot. —

See Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974), overruled, McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

Applied in

State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

Stated in

Alaskans for Efficient Gov't, Inc. v. Knowles, 91 P.3d 273 (Alaska 2004).

Cited in

Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); .

Section 7. Restrictions.

The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation. The referendum shall not be applied to dedications of revenue, to appropriations, to local or special legislation, or to laws necessary for the immediate preservation of the public peace, health, or safety.

Cross references. —

For restrictions on the form of bills, see art. II, § 13 of this constitution.

Editor’s notes. —

The amendment proposed by 2000 Legislative Resolve 48 (HJR 56) (prohibition on wildlife initiatives) was rejected by voters.

Opinions of attorney general. —

Authorizing school service areas to submit their budgets to the people by referendum would violate this section. 1961 Alas. Op. Att'y Gen. No. 24.

Notes to Decisions

Analysis

I.General Consideration

Applicability. —

Referendum on a city’s labor relations ordinance did not improperly concern an appropriation because the referendum did not compel or restrict the expenditure of public funds, the approval of labor contracts, or any particular level of employee compensation. Municipality of Anchorage v. Holleman, 321 P.3d 378 (Alaska 2014).

Strict compliance required. —

The restrictions of this section are important conditions on the initiative right that require strict compliance. Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991).

Remedy for defective petition. —

When faced with statewide initiative petitions that have been circulated with a defective summary, a court must consider the nature and magnitude of the misleading statement or omission, the likelihood and extent of petition-signer inadvertence, the hardship to initiative sponsors that invalidating signatures would cause, and the hardship to the initiative’s opponents that permitting the initiative to go forward would cause. Planned Parenthood v. Campbell, 232 P.3d 725 (Alaska 2010).

Subject cannot exceed authority of legislature. —

The subject of the initiative must constitute such legislation as the legislative body to which it is directed has the power to enact. Municipality of Anchorage v. Frohne, 568 P.2d 3 (Alaska 1977).

Lieutenant governor properly refused to certify an initiative that would ban all abortions in Alaska because the lieutenant governor has the authority to deny certification of an initiative if controlling authority shows the initiative’s unconstitutionality. Here, the initiative was clearly unconstitutional under controlling authority barring states from banning all abortions. The content of the initiative was beyond the power of the legislature to enact. Desjarlais v. State, 300 P.3d 900 (Alaska 2013).

Initiative and referendum restricted to ordinances. —

The power of both initiative and referendum is restricted to legislative ordinances, and does not extend to administrative measures. Wolf v. Alaska State Hous. Auth., 514 P.2d 233 (Alaska 1973).

Matter subject to review is also subject for initiative. —

If the subject matter of an ordinance were properly subject to popular review, then it also would be a proper subject for popular initiative. Wolf v. Alaska State Hous. Auth., 514 P.2d 233 (Alaska 1973).

Statute requiring appointment of commission held valid. —

AS 44.06.060 does not violate this provision of the state constitution, limiting the purposes for which initiative may be used, because the statute does not specify procedural requirements that can be placed upon the initiative process. Alaskans for Efficient Gov't, Inc. v. Knowles, 91 P.3d 273 (Alaska 2004).

Initiative held permissible. —

Proposed initiative relating to mineral mining regulation was constitutionally and statutorily permissible as it would not appropriate public assets, would not enact special legislation, and the summary and cost statements were not defective. Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009), overruled in part, Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Initiative attempting to alter or supplement existing court rules. —

Lieutenant governor properly denied certification of an initiative that would have set maximum allowable levels of attorney’s fees in personal injury cases, where the initiative constituted an attempt to prescribe a rule of court in violation of this section and would have altered or supplemented existing court rules regulating contingent fees. Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 (Alaska 1991).

Applied in

Warren v. Boucher, 543 P.2d 731 (Alaska 1975); Kohlhaas v. State, 147 P.3d 714 (Alaska 2006).

Quoted in

Walters v. Cease, 388 P.2d 263 (Alaska 1964); Abrams v. State, 534 P.2d 91 (Alaska 1975); City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153 (Alaska 1991); Carmony v. McKechnie, 217 P.3d 818 (Alaska 2009); Alaska Miners Ass'n v. Holman, 397 P.3d 312 (Alaska 2017).

Cited in

Thomas v. Bailey, 611 P.2d 536 (Alaska 1980); Shetters v. State, 832 P.2d 181 (Alaska Ct. App. 1992); Griswold v. City of Homer, 186 P.3d 558 (Alaska 2008); Swetzof v. Philemonoff, 203 P.3d 471 (Alaska 2009); Forrer v. State, 471 P.3d 569 (Alaska 2020).

II.Appropriations

Appropriation purpose prohibited. —

The language of this section prohibits initiatives for the purpose of making appropriations. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

General wording of appropriation limitation. —

Though most state constitutions with referendum and initiative provisions have some limitation relating to appropriations, Alaska’s appropriation limitation is worded more generally than that of most other states. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

By the term “appropriations,” this section prohibits an initiative whose primary object is to require the outflow of state assets in the form of land as well as money. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

Because Alaska Const., art. II and XI serve different purposes, the court rejected the governor’s argument that the expansive scope given “appropriations” in article XI as to the making of appropriations should be extended to article II. The court explicitly adopted the exclusively monetary characterization of Alaska Const., art. II appropriations items and held that the governor’s appropriations veto applies only to monetary appropriations. State Legislative Council v. Knowles, 86 P.3d 891 (Alaska 2004).

“Appropriations” includes statutes that set aside a specific amount of lands and direct it be given away in the manner required by a 1978 initiative, entitled “The Alaska Homestead Act,” which gave away to any resident of three or more years who would conduct a survey, file two papers, and pay a nominal filing fee public assets in the form of state land, and which imposed no obligations on the applicant after he or she received the land. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

Clerk’s refusal to certify initiative proposal upheld. —

Pursuant to AS 29.26.100 , 29.10.030(a) and (c), this section and Alaska Const. art. XII, § 11, Anchorage, Alaska, municipal clerk was acting within her authority when she rejected the citizens’ initiative, aimed at preserving much of the lower end of a valley as a park, on the ground that it proposed to make an appropriation and, furthermore, her determination was correct — by designating a particular tract of land as a park, the initiative would commit specific public assets to a specific purpose, making an appropriation, which was an action that could not be taken by initiative; without the impermissible park designation, the rest of the initiative could not go to the voters. Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989 (Alaska 2004).

One subject rule. —

An initiative creating a “soft dedication” of funding for one proposal from a tax created in a separate unrelated proposal could not be interpreted to find that two independent provisions of an initiative addressed one subject. Croft v. Parnell, 236 P.3d 369 (Alaska 2010).

Alaska Homestead Act held appropriations initiative. —

The law proposed by a 1978 initiative entitled “The Alaska Homestead Act” was, for purposes of this section, a law making an appropriation and, therefore, an illegitimate subject for initiative. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

A 1978 initiative entitled “The Alaska Homestead Act” would have substantially depleted the state government of valuable assets just as surely as an initiative allotting to residents of specified years large sums of money. In the same manner, it constituted an appropriation and hence could not be enacted by initiative. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

The fact that a survey might be costly did not change the essential nature of a 1978 initiative entitled “The Alaska Homestead Act” as an appropriations initiative. The applicant would have paid the surveyor; no compensation or service was rendered to the state. The stated purpose and effect of the initiative on the state treasury would still be an expenditure of state assets in the form of public lands. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979).

Improper appropriation. —

Initiative proposition that made prior voter approval a requirement for the borough to construct or acquire capital projects in excess of a specified cost violated this provision and AS 29.26.100 because it sufficiently narrowed the borough’s ability to make allocation decisions to render it an appropriation of municipal funds. Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128 (Alaska 2012).

Proposed ballot initiative that would ban commercial set net fishing in nonsubsistence areas violates the Alaska Constitution because it effects a prohibited appropriation via initiative; it would have resulted in a give-away program of salmon stock from set netters to other types of fishers, and it would have significantly narrowed the Alaska Legislature’s and Alaska Board of Fisheries’ range of freedom to make allocation decisions. Lieutenant Governor of Alaska v. Alaska Fisheries Conservation Alliance, Inc., 363 P.3d 105 (Alaska 2015).

Proposed ballot initiative that would have established a permitting requirement for activities that could harm anadromous fish habitat was unconstitutional under Alaska Const. art. XI, § 7, where it barred the commissioner from granting a permit to a project that would have caused substantial damage or have one of the listed effects, thereby removing certain allocation decisions from the legislature's range of discretion. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

It was wrong to rely on Pullen v. Ulmer , 923 P.2d 54 (Alaska 1996), to characterize a complete prohibition on certain uses of public assets as a permissible initiative. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Supreme Court of Alaska was wrong in Pebble Ltd. P'ship v. Parnell , 215 P.3d 1064 (Alaska 2009), to say that the initiative would not be an appropriation simply because it regulated natural resources. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Supreme Court of Alaska was incorrect to reason that the Pebble Ltd. P'ship v. Parnell , 215 P.3d 1064 (Alaska 2009), initiative would not be an appropriation because it did not allocate public assets to or from a user group. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

In Pebble Ltd. P'ship v. Parnell , 215 P.3d 1064 (Alaska 2009), the Spreme Court of Alaska should not have characterized legislative discretion as dependent on undefined terms. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

To follow Pebble Ltd. P'ship v. Parnell , 215 P.3d 1064 (Alaska 2009), to its logical conclusion would be to allow any initiative regulating public assets to go before the voters so long as it would not wholly usurp the legislature's allocation function. But that is not where the delegates intended to draw the line between permissible regulation and impermissible appropriation. Instead, an initiative must leave to the legislature ultimate decision-making authority to use specific public assets for specific purposes. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

When determining whether an initiative effects an appropriation, the proper analysis should focus on the two core objectives identified in case law. An initiative is an impermissible give-away program if it transfers state assets into private hands. An initiative also effects an appropriation if it infringes on the legislature's ability to allocate resources among competing uses, that is, if it fails to ensure that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs, by forcing the legislature to make a particular allocation decision in the future or by removing certain allocation decisions from the legislature's range of discretion. Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Sale of municipal utility for one dollar. —

An initiative which would require a municipality to sell a municipally-owned utility to a private nonprofit cooperative corporation for one dollar violated this section because it would make an appropriation. Alaska Conservative Political Action Comm. v. Municipality of Anchorage, 745 P.2d 936 (Alaska 1987).

Initiative that involved municipality’s issuance of taxicab permits, which citizens sought to have placed on a ballot, was not a limitation on appropriation by an initiative; therefore, the initiative did not violate this section. Anchorage Citizens for Taxi Reform v. Municipality of Anchorage, 151 P.3d 418 (Alaska 2006).

Initiatives related to sale of utility’s assets rejected as appropriations. —

Municipal clerk properly rejected initiative petitions where the initiatives would have violated this section; the initiatives, which related to the sale of assets belonging to the city’s utilities, would have been appropriations that would have allocated the municipality’s resources, and they would have eliminated the assembly’s discretionary authority by requiring the sale of specific municipal assets. Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259 (Alaska 2006).

Petitioner, who sought the sale of assets related to a city’s utilities, attempted to rely on the city’s charter, Anchorage, Alaska, Municipal Charter § 16.02; while this section ostensibly allowed the petitioner’s requested initiatives related to the sale of the assets, this section was void at inception for not complying with Alaska Const. art. XI, § 7. Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259 (Alaska 2006).

Provision transferring property between university systems. —

The term “appropriation” includes the setting aside of property other than money. Hence, the provision in an initiative transferring from the University of Alaska to the community college system of Alaska such real and personal property as was necessary to the independent operation and maintenance of the community college system, could be deemed to be an appropriation and, therefore, violative of this section. McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

Although laws which merely create new government programs or liabilities do not constitute appropriations, the provision of an initiative which transferred funds from the University of Alaska to the community college system of Alaska was an appropriation, since it designated the use of state assets in a manner which was executable, mandatory, and reasonably definite with no further legislative action. McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

Initiative to set priorities among different salmon harvest users. —

Salmon are public assets of the state which may not be appropriated by initiative, and an initiative to require the Board of Fisheries, after providing for the biological escapement needs of Alaska’s salmon stocks, to reserve a priority for the harvest needs for each particular salmon stock of personal use, sport, and subsistence fisheries prior to allocating any portion of the harvestable surplus to commercial fisheries was an appropriation of state assets in violation of this provision, as well as AS 15.45.010 . Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996).

III.Local or Special Legislation

Proposed initiative had general statewide applicability. —

Because on its face the proposed initiative was of general statewide applicability, it was not prohibited special or local legislation, and the initiative’s provisions bore a fair and substantial relationship to legitimate state purposes. Pebble L.P. v. Parnell, 215 P.3d 1064 (Alaska 2009), overruled in part, Mallott v. Stand for Salmon, 431 P.3d 159 (Alaska 2018).

Initiative that would require legislative approval for large-scale metallic sulfide mining operations located within a bay’s watershed permissibly distinguished the watershed and its salmon fishery and did not violate the Constitution’s prohibition on local or special legislation; the bay’s unique and significant biological and economic characteristics were of great interest to the region and to the State as a whole, and the initiative’s purpose, to protect wild salmon and waters, was legitimate. Hughes v. Treadwell, 341 P.3d 1121 (Alaska 2015).

This section expressly exempts “local or special legislation” from both the initiative and the referendum. Wolf v. Alaska State Hous. Auth., 514 P.2d 233 (Alaska 1973).

Mandatory Borough Act not subject to referendum. —

Being local and special legislation, ch. 52, SLA 1963 (Mandatory Borough Act), is not subject to the referendum provision of this article. Walters v. Cease, 394 P.2d 670 (Alaska 1964), overruled in part, Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974).

Chapter 52, SLA 1963 (Mandatory Borough Act), is both local and special legislation because it applies only to a limited number of geographical areas, rather than being widespread in its operation throughout the state, and because its method for incorporating organized boroughs is peculiar to the few selected localities where it is applicable. Walters v. Cease, 394 P.2d 670 (Alaska 1964), overruled in part, Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974).

Section 8. Recall.

All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature.

Notes to Decisions

Sufficiency of application. —

Court properly granted a recall committee's application for recalling the governor because it satisfied the legal requirements for presentation to the voters; the application alleged, inter alia, that the governor abused the discretionary power to apply the line-item veto to appropriations bills and to decrease legislative appropriations, it alleged that the governor made a mistaken veto, and while the governor's "legal" or "proper" exercise of discretion could not establish a for-cause ground for recall, the specific allegation was that the governor was not making a conscious decision but rather "acted incompetently" and made a mistake, later corrected. State v. Dunleavy, 491 P.3d 343 (Alaska 2021).

Stated in

McCormick v. Smith, 793 P.2d 1042 (Alaska 1990); Von Stauffenberg v. Committee for an Honest & Ethical Sch. Bd., 903 P.2d 1055 (Alaska 1995).

Cited in

Anchorage Baptist Temple v. Coonrod, 166 P.3d 29 (Alaska 2007).

Article XII General Provisions

Section 1. State Boundaries.

The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, included in the Territory of Alaska upon the date of ratification of this constitution by the people of Alaska.

Section 2. Intergovernmental Relations.

The State and its political subdivisions may cooperate with the United States and its territories, and with other states and their political subdivisions on matters of common interest. The respective legislative bodies may make appropriations for this purpose.

Notes to Decisions

Cited in

Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296 (Alaska 2007).

Section 3. Office of Profit.

Service in the armed forces of the United States or of the State is not an office or position of profit as the term is used in this constitution.

Notes to Decisions

Meaning of phrase “position of profit”. —

See Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Section 4. Disqualification for Disloyalty.

No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.

Section 5. Oath of Office.

All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Alaska, and that I will faithfully discharge my duties as . . . . . . . . . . . . to the best of my ability.” The legislature may prescribe further oaths or affirmations.

Notes to Decisions

Quoted in

DeNardo v. Municipality of Anchorage, 775 P.2d 515 (Alaska 1989).

Cited in

DeNardo v. Johnstone, 772 F. Supp. 462 (D. Alaska 1991); Alaska Fed'n for Community Self-Reliance v. Alaska Pub. Utils. Comm'n, 879 P.2d 1015 (Alaska 1994); Wielechowski v. State, 403 P.3d 1141 (Alaska 2017).

Section 6. Merit System.

The legislature shall establish a system under which the merit principle will govern the employment of persons by the State.

Cross references. —

For statutory provisions relating to state officers and employees, see AS 39.

Notes to Decisions

Merit principle. —

Generally defined, the merit principle requires the recruitment, selection, and advancement of public employees under conditions of political neutrality, equal opportunity, and competition on the basis of merit and competence. Alaska Pub. Employees Ass'n v. State, 831 P.2d 1245 (Alaska 1992).

A job classification plan is an integral part of the very foundation of the merit principle in state employment. Alaska Pub. Employees Ass'n v. State, 831 P.2d 1245 (Alaska 1992).

Probationary employee not entitled to “for cause” job protection. —

State employee who was in a probationary period was not entitled to “for cause” protection from separation, and his union had waived his right to arbitrate; the employee was only entitled to a written statement of the reasons for his dismissal. Blackburn v. State, 103 P.3d 900 (Alaska 2004).

Privatization permitted. —

The merit principle of employment embodied in this section does not forbid state agencies from seeking to reduce public spending by “privatizing” state jobs — that is, by eliminating positions on the state workforce in favor of lower cost private contracts for the same services, as neither the political nor the social danger of privatization appears so threatening to the merit principle as to justify reading a categorical bar against privatization. Moore v. State, DOT & Pub. Facilities, 875 P.2d 765 (Alaska 1994).

Benefits programs violated the rights of same-sex couples under this section by covering married public employees but not domestic partners; programs allowing the governments to give married workers substantially greater compensation than they gave, for identical work, to workers with same-sex partners cut against constitutional principles but furthered no legitimate goal of the governments as public employers. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Applied in

Witt v. State, 75 P.3d 1030 (Alaska 2003).

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Cited in

Cassel v. Dep't of Admin., 14 P.3d 278 (Alaska 2000); Peterson v. State, 236 P.3d 355 (Alaska 2010).

Section 7. Retirement Systems.

Membership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired.

Cross references. —

For statutory provisions relating to public employee retirement systems, see AS 39.35.

Opinions of attorney general. —

Retirement benefits afforded under the public employees retirement system (AS 39.35) are not negotiable under the Public Employment Relations Act (AS 23.40.070 23.40.240 ). January 23, 1978 Op. Att’y Gen.

Notes to Decisions

The protection afforded “employee retirement systems” in this section covers participation in those systems by all persons holding salaried positions with the state. State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

Key determination for whether an individual has standing to claim protection is whether they have a vested right to a benefit generated by membership in the State's public retirement systems; the Constitution protects the rights of those who accrued benefits due to their membership in a State employee retirement system, and whether or not an individual is a "member," an individual with an accrued benefit has a constitutional right that the benefit not be diminished or impaired by legislation. Metcalfe v. State, 484 P.3d 93 (Alaska 2021).

Primary purposes of state employee retirement systems is to induce persons to enter and continue in public service, and this inducement works in the long term only if employees can trust the State's promise that the accrued benefits of system membership will not be diminished or impaired; the Alaska Constitution ensures that the State's promises are kept. Metcalfe v. State, 484 P.3d 93 (Alaska 2021).

The elected public officers retirement system is an “employee retirement system” within the meaning of this section, which provides that membership in state employee retirement systems shall constitute a contractual relationship. State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

There is no valid basis upon which to distinguish the rights of elected officials in the elected public officers retirement system from their rights in the public employees’ retirement system in the context of this section. State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

The elected public officers retirement system constitutes a contractual relationship between participants in that program and the state of Alaska, which must be honored by the state. Therefore, all elected officials who were participating in the elected public officers retirement system at the time its repeal became effective [October 14, 1976] will be entitled to the benefits provided by that system upon retirement. State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

Even assuming the extreme likelihood of the subsequent repeal of a legislative enactment, this section and AS 01.10.100(a) preclude the finding of an implicit condition subsequent in the contracts between participants in the elected public officers retirement system [former AS 39.37.010 — 39.37.150] and the state of Alaska, since AS 01.10.100(a) provides that “[t]he repeal . . . of any law does not release or extinguish any . . . liability incurred or right accruing or accrued under such law” and finding a condition subsequent to be implicit in the contract under consideration would undermine this section. State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

Even though a referendum petition was duly filed over three months before the effective date of this chapter (January 1, 1976), the rights accrued under the elected public officers retirement system were not subject to any implied condition subsequent of repeal by the electorate, and those rights remain fully enforceable. State ex rel. Hammond v. Allen, 625 P.2d 844 (Alaska 1981).

Breach of contract action.—

Public employee had no right to diminution of value damages based on a claim that a statutory amendment was a breach of the employee's Alaska Public Employees' Retirement System contract. However, remand of the employee's claim for declaratory and injunctive relief, for further proceedings, was appropriate because it was error to dismiss the employee's claim as barred by the statute of limitations and the employee's declaratory judgment claim was ripe for decision. Metcalfe v. State, 382 P.3d 1168 (Alaska 2016), overruled in part, Hahn v. Geico Choice Ins. Co., 420 P.3d 1160 (Alaska 2018).

Change in actuarial factors. —

Use of actuarial factors adopted subsequent to commencement of employees’ employment by state and prior to their retirement violated this provision, even though the change occurred by means of change in public employee retirement system rather than by legislative amendment. Sheffield v. Alaska Pub. Employees' Ass'n, 732 P.2d 1083 (Alaska 1987).

When benefits under public employees’ retirement system vest. —

Benefits under public employees’ retirement system are in the nature of deferred compensation and the right to such benefits vests immediately upon an employee’s enrollment in that system. Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981).

An employee’s rights to retirement benefits vest on employment and enrollment in a retirement system, and the vested rights protected by this section necessarily include the dollar amount of the benefits payable. Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640 (Alaska 1991).

“Accrued benefits.” —

Term “accrued benefits” is not limited to just the benefits that were provided to public employees at the time of ratification of the constitution. Instead, the term includes all retirement benefits that make up the retirement benefit package that becomes part of the contract of employment when the public employee is hired, including health insurance benefits. Duncan v. Retired Pub. Emples. of Alaska, Inc., 71 P.3d 882 (Alaska 2003).

Repeal of the statutory right of reinstatement diminished a former State employee's accrued benefits because the benefit became an "accrued benefit" as soon as the former employee became employed and enrolled in the Public Employees' Retirement System; the former employee and other persons considering the advantages and disadvantages of State employment while the statute was in effect, could reasonably rely on it when making important employment decisions. Metcalfe v. State, 484 P.3d 93 (Alaska 2021).

Effect of vesting. —

The fact that rights in public employees’ retirement system vest on employment does not preclude modifications of the system; that fact does, however, require that any changes in the system that operate to a given employee’s disadvantage must be offset by comparable new advantages to that employee. Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981).

What vested benefits include. —

The vested benefits protected by this section necessarily include not only the dollar amount of the benefits payable, but the requirements for eligibility as well. Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981).

A determination of whether vested rights to benefits have been diminished must be made on a case-by-case basis. Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981).

Cashed-in leave. —

Before the Alaska Legislature amended former AS 39.35.680 (4) in 1977, by 1977 SLA ch. 128, § 54 (which did specifically exclude cashed-in leave while said statute was silent on the subject), neither by law nor by practice did a former state employee, hired in 1969, acquire a right to have his cashed-in leave included as part of his compensation, and he therefore had no right that could have been impaired when the legislature excluded cashed-in leave from the definition of compensation; accordingly, the Alaska Public Employees’ Retirement Board’s refusal to allow the former state employee to include his cashed-in leave when calculating his retirement benefits did not violate this section. McMullen v. Bell, 128 P.3d 186 (Alaska 2006).

1976 amendment of provisions relating to public employees retirement system unconstitutional. —

Insofar as the vested rights of those public safety employees hired before July 1, 1976, who choose to receive benefits under the public employees retirement system in effect at the time they were hired were diminished by the 1976 amendment of AS 39.35.410(d) and (g) and 39.35.430(a) (repealed) and (b), the amended subsections were violative of this section as applied to those employees. Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981).

Municipality’s settlements of grievances. —

Superior court erred in ruling that requiring Anchorage Police and Fire Retirement System to absorb impact of a municipality’s settlements of grievances was unconstitutional because requiring the System to absorb the impact did not change the System’s pension plans’ basic operations, and it did not impair a vested right. Bd. of Trs. v. Municipality of Anchorage, 144 P.3d 439 (Alaska 2006).

Year according to which benefits calculated. —

Retiree who first enrolled in the teachers’ retirement system in 1969 was entitled to have his benefits calculated according to 1969 law. Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640 (Alaska 1991).

Municipal ordinance impairing rights. —

A municipal ordinance amending a retirement system violated this section where it impaired the rights of members of retirement plans to have the actuarial soundness of the plans evaluated and maintained separately without being affected by the soundness of other plans. Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997).

Analysis of changes to benefits. —

State supreme court vacated the grant of the retirees’ summary judgment to the extent that it required the analysis of the disadvantages and compensating advantages of changes to health insurance benefits be made by focusing on individuals as opposed to the entire group of employees. Duncan v. Retired Pub. Emples. of Alaska, Inc., 71 P.3d 882 (Alaska 2003).

Benefits not diminished. —

Application of recapture requirement of earlier version of AS 39.35.150(b) to early retirees’ benefits from their first round of employment with the state did not violate the anti-diminution provision of Alaska Const., art. XII, § 7, because retirees’ net benefit from both rounds of employment increased, although their benefit from their first round of employment decreased. Alford v. State, 195 P.3d 118 (Alaska 2008).

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968); City of Fairbanks v. Fairbanks AFL-CIO Crafts Council, 623 P.2d 321 (Alaska 1981); Rice v. Rice, 757 P.2d 60 (Alaska 1988).

Cited in

Hudson v. Johnstone, 660 P.2d 1180 (Alaska 1983); Pub. Emples. Ret. Sys. v. Gallant, 153 P.3d 346 (Alaska 2007).

Section 8. Residual Power.

The enumeration of specified powers in this constitution shall not be construed as limiting the powers of the State.

Section 9. Provisions Self-Executing.

The provisions of this constitution shall be construed to be self-executing whenever possible.

Section 10. Interpretation.

Titles and subtitles shall not be used in construing this constitution. Personal pronouns used in this constitution shall be construed as including either sex.

Notes to Decisions

A preamble, or declaration of purpose, is neither a title nor a subtitle. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Cited in

Larson v. State, 564 P.2d 365 (Alaska 1977).

Section 11. Law-Making Power.

As used in this constitution, the terms “by law” and “by the legislature,” or variations of these terms, are used interchangeably when related to law-making powers. Unless clearly inapplicable, the law-making powers assigned to the legislature may be exercised by the people through the initiative, subject to the limitations of Article XI.

Opinions of attorney general. —

The implication in this section is that since the people have the same law-making powers as does the legislature, then the people are also subject to the same restrictions as the legislature, “unless clearly inapplicable.” 1959 Alas. Op. Att'y Gen. No. 36.

Notes to Decisions

Terms such as “according to law” refer to the legislature’s power to make laws. State v. University of Alaska, 624 P.2d 807 (Alaska 1981).

The initiative may be used only to enact laws. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

And not for the purpose of constitutional amendment. —

See Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Initiative legislation that reinstated certain penalties for possession of marijuana in any place and in any amount was unconstitutional to the extent that it violated the constitutional right to privacy as articulated in the decision in Ravin v. State , 537 P.2d 494 (Alaska 1975); the appellate court upheld the statute to the extent possible by reinstating a dividing line between private personal possession and illegal possession of four ounces, and ordered a new trial to determine into which category of possession defendant fell. Noy v. State, 83 P.3d 538 (Alaska Ct. App. 2003).

Single subject standard is enacted at AS 15.45.040 with respect to initiatives; whether this limitation is within the legislature’s power under Alaska Const., art. XI, is questionable; but this section makes the law making power equal, and the restriction in Alaska Const., art. II, § 13, therefore, applies to initiatives. Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

A one-subject rule for initiatives which is more restrictive than the rule for legislative action is not permitted. Yute Air Alaska v. McAlpine, 698 P.2d 1173 (Alaska 1985).

Legislative power to enact method of determining whether act and initiative are substantially same. —

This section and Alaska Const., art. V, § 3, and art. XI, § 4, when read in harmony, give the legislature the power to enact a method of determining whether an act and an initiative are “substantially the same,” as used in Alaska Const., art. XI, § 4. Warren v. Boucher, 543 P.2d 731 (Alaska 1975).

Under the authority of AS 15.45.070 and 15.45.080 , the lieutenant governor properly denied certification of a ballot initiative under Alaska Const. art. XI, § 1 and this section, calling for Alaska’s secession from United States because, although neither the federal nor state constitutions expressly prohibited secession, U.S. Supreme Court had found it clearly unconstitutional and the state was thus bound under Supremacy Clause, U.S. Const. art. VI, cl. 2; thus, pursuant to codification of constitutional provisions of AS 15.45.010 and 15.45.040 , the lieutenant governor was permitted to deny certification, and the Ninth and Tenth Amendments to the U.S. Constitution did not permit secession because the state could not reserve a power that it had never possessed. Kohlhaas v. State, 147 P.3d 714 (Alaska 2006).

Subject matter of wildlife management is not clearly inapplicable to the initiative process, based upon the language and history of the constitutional provisions regarding the initiative process. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Prohibiting use of wolf trap snares. —

Since the legislature does not have exclusive law-making powers over natural resources issues merely because of the state’s management role over wildlife set forth in Alaska Const., art. VIII, the issue of prohibiting the use of snares to trap wolves is not clearly inapplicable to the initiative process under Article XII. Brooks v. Wright, 971 P.2d 1025 (Alaska 1999).

Refusal to certify initiative proposal. —

Borough clerk improperly refused to certify a resident’s application for an initiative petition for mayoral term limits on the ground that she believed the proposed ordinance to be unenforceable, when the constitutionality of such term limits had not yet been addressed, because such refusal deprived voters of access to the initiative process. Kodiak Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003).

Clerk’s refusal to certify initiative proposal upheld. —

Pursuant to AS 29.26.100 , 29.10.030(a) and (c) and Alaska Const. art. XI, § 7 and this section, Anchorage, Alaska, municipal clerk was acting within her authority when she rejected the citizens’ initiative, aimed at preserving much of the lower end of a valley as a park, on the ground that it proposed to make an appropriation and, furthermore, her determination was correct — by designating a particular tract of land as a park, the initiative would commit specific public assets to a specific purpose, making an appropriation, which was an action that could not be taken by initiative; without the impermissible park designation, the rest of the initiative could not go to the voters. Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989 (Alaska 2004).

Applied in

Thomas v. State, 566 P.2d 630 (Alaska 1977); Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Quoted in

In re Robson, 500 P.2d 657 (Alaska 1972); Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Stated in

Douglas v. Juneau, 484 P.2d 1040 (Alaska 1971).

Cited in

Dancer v. State, 715 P.2d 1174 (Alaska Ct. App. 1986); Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989).

Section 12. Disclaimer and Agreement.

The State of Alaska and its people forever disclaim all right and title in or to any property belonging to the United States or subject to its disposition, and not granted or confirmed to the State or its political subdivisions, by or under the act admitting Alaska to the Union. The State and its people further disclaim all right or title in or to any property, including fishing rights, the right or title to which may be held by or for any Indian, Eskimo, or Aleut, or community thereof, as that right or title is defined in the act of admission. The State and its people agree that, unless otherwise provided by Congress, the property, as described in this section, shall remain subject to the absolute disposition of the United States. They further agree that no taxes will be imposed upon any such property, until otherwise provided by the Congress. This tax exemption shall not apply to property held by individuals in fee without restrictions on alienation.

Opinions of attorney general. —

This section stands as an independent constitutional bar to state assertion of ownership over federal lands since it is an affirmative statement of state policy accepting continued federal ownership of land in Alaska, embodied in the Constitution. 1983 Alas. Op. Att'y Gen. No. 2.

Alaska’s Constitution was adopted and ratified before the Statehood Act was passed, and not in direct response to conditions explicitly laid down in the Statehood Act. 1983 Alas. Op. Att'y Gen. No. 2.

1982 Ballot Measure No. 5 (the “Tundra Rebellion” initiative proposition) is unconstitutional because it is in direct conflict with the disclaimer provisions of §§ 12 and 13, art. XII, of the state constitution, and as a result, neither the Department of Natural Resources nor any other public agencies (e.g., the Department of Public Safety, etc.) should attempt to implement its provisions. 1983 Alas. Op. Att'y Gen. No. 2.

Notes to Decisions

Section 4 of the Alaska Statehood Act, 48 U.S.C. Prec. § 21, has been substantially incorporated into the Alaska Constitution as this section. Aquilar v. Kleppe, 424 F. Supp. 433 (D. Alaska 1976).

This section and § 4 of Statehood Act constitute compact between sovereigns. —

Section 4 of the Alaska Statehood Act (72 Stat. 339, as amended, 48 USC Prec. § 23) is a direct response by Congress to the provisions contained in the five sentences of this section. The two sections constitute a compact between sovereigns. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

A comparison of the offer, in the first sentence of this section, with the response in § 4 of the Alaska Statehood Act indicates definite agreement as to the future status of United States property. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

The offer in the third sentence of this section and the response in the Alaska Statehood Act indicate agreement as to property. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

The fourth and fifth sentences of this section and the response in § 4 of the Alaska Statehood Act appear to have sufficient definiteness to be offers and acceptances. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

A comparison between the offer in the second sentence of this section and the response in § 4 of the Alaska Statehood Act does not indicate definite agreement. The offer to disclaim by the state was conditioned on definition in the act of admission of the right or title to be disclaimed. The response merely repeated the offer to disclaim. It did not comply with the condition by defining the right or title. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

Which became effective upon approval of Statehood Act by voters. —

The compact or contract between Alaska and the United States became effective upon approval of the terms of the Alaska Statehood Act by the voters of Alaska. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

But Omnibus Act forms no part of it. —

The amendment of the Alaska Statehood Act by the Alaska Omnibus Act, 73 Stat. 141, § 2a, forms no part of the compact between Alaska and the United States. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

And no compact as to fishing rights was formed between the State of Alaska and the United States by the second sentence of this section and the responsive portion of § 4 of the Alaska Statehood Act. This is because no fishing rights were defined, as required by the condition in the offer to disclaim, and no fishing rights were “held” by or for natives at the time. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

No act of Congress had established any “right or title” in fishing rights which were “held” by or for natives at the time the compact was made. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

In the second sentence of this section the state offered to disclaim as to right or title “held” by or for the persons named. The response in the Alaska Statehood Act described the right or title as “held” by or for natives. There is no evidence of an intent on the part of either sovereign that any new or additional rights in fishing rights be established by the compact itself. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

Eleventh amendment bar not waived. —

By adoption of this section, the state has not waived the bar of the 11th amendment of the federal constitution in disputes over land selected for allotment by Alaska natives. Aquilar v. Kleppe, 424 F. Supp. 433 (D. Alaska 1976).

Section 4 of the Alaska Statehood Act, 48 U.S.C. Prec. § 21, and this section do not expressly waive the 11th amendment bar, and while Alaska disclaimed any interest in property rights held by Alaska natives or the federal government, it is not overwhelmingly implied that the state consented to suits involving conflicting claims to land previously held by the federal government but later patented to the state. Aquilar v. Kleppe, 424 F. Supp. 433 (D. Alaska 1976).

Hiring preferences as to Native Americans. —

Because Alaska Const. art. XII, § 12, effectively disavowed any state authority comparable to the federal government’s protective powers over Native Americans, to the extent that the Alaska Constitution implied anything concerning the state’s relations with Alaska Natives, it mirrored the constitutional drafters’ desire to treat Alaska Natives like all other Alaska citizens; the Alaska Constitution thus implied nothing that would give a borough a legitimate interest in enacting a preference for hiring or promoting Native Americans. Malabed v. N. Slope Borough, 70 P.3d 416 (Alaska 2003).

Cited in

Jones v. State, 936 P.2d 1263 (Alaska Ct. App. 1997).

Section 13. Consent to Act of Admission.

All provisions of the act admitting Alaska to the Union which reserve rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property, are consented to fully by the State and its people.

Opinions of attorney general. —

1982 Ballot Measure No. 5 (the “Tundra Rebellion” initiative proposition) is unconstitutional because it is in direct conflict with the disclaimer provisions of §§ 12 and 13, art. XII, of the state constitution, and as a result, neither the Department of Natural Resources nor any other public agencies (e.g., the Department of Public Safety, etc.) should attempt to implement its provisions. 1983 Alas. Op. Att'y Gen. No. 2.

Notes to Decisions

This section is construed to be a blanket consent by Alaska to such proper reservations of rights or powers to the United States as may be contained in the act admitting Alaska to the Union. Metlakatla Indian Community v. Egan, 362 P.2d 901 (Alaska 1961), vacated in part, 369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562 (U.S. 1962), aff'd in part, 369 U.S. 60, 82 S. Ct. 562, 7 L. Ed. 2d 573 (U.S. 1962).

No specific limitations to mineral alienation were set forth in the constitution by this provision. Nor were any terms or conditions incorporated by reference to an existing statute or code since the Statehood Act was yet to be enacted by Congress. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Consent to be bound by such reservations as Congress requires. —

The Alaska Constitution did not contain any specific restrictions on alienation but merely a consent to be bound by such reservations as would be required by Congress. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

This section is similar to Alaska Const., art. VIII, § 9, in expressing advance consent to terms or conditions which might be required by Congress as a condition to admission of Alaska to the Union. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

All that was required to release the congressional restrictions was congressional consent. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

And state constitutional amendment is not mandated. —

After Congress has given its consent to a change in terms, a state constitutional amendment is not mandated to alter the compact. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

No impediment to authorized land exchange. —

This section and Alaska Const., art. VIII, § 9 impose no impediment to an exchange of land authorized by Congress and the state legislature even though the exchange involves a conveyance of mineral rights by the state. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Chapter 19, SLA 1976, is constitutional. —

Chapter 19, SLA 1976, which authorized a three-way exchange of land between the state of Alaska, the United States government and a regional corporation of Alaska natives, which exchange was to pass all of the state’s rights in the land including the mineral subsurface estate, was constitutional since there is no constitutional prohibition against alienation of mineral rights which precludes this land exchange. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Once congressional consent to release the restrictions required by Congress was secured, the Alaska legislature, in agreeing to the disposition of the land and mineral rights by ch. 19, SLA 1976, was not violating any specific provision of the Alaska Constitution. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Inclusion of the University of Alaska lands in Chugach State Park without paying compensation to the university violated the trust provision of the federal grant. State v. University of Alaska, 624 P.2d 807 (Alaska 1981).

The objective that park lands are to be managed in a way that will increase “the value of a recreational experience” is incompatible with the objective of using university land for the “exclusive use and benefit” of the University of Alaska, since the implied intent of the grant was to maximize the economic return from the land for the benefit of the university and this intent cannot be accomplished if the use of the land is restricted to any significant degree. State v. University of Alaska, 624 P.2d 807 (Alaska 1981).

Section 14. Approval of Federal Amendment to Statehood Act Affecting an Interest of the State under that Act.

A federal statute or proposed federal statute that affects an interest of this State under the Act admitting Alaska to the Union is ineffective as against the State interest unless approved by a two-thirds vote of each house of the legislature or approved by the people of the State. The legislature may, by a resolution passed by a majority vote of each house, place the question of approval of the federal statute on the ballot for the next general election unless in the resolution placing the question of approval, the legislature requires the question to be placed before the voters at a special election. The approval of the federal statute by the people of the State is not effective unless the federal statute described in the resolution is ratified by a majority of the qualified voters of the State who vote on the question. Unless a summary of the question is provided in the resolution passed by the legislature, the lieutenant governor shall prepare an impartial summary of the question. The lieutenant governor shall present the question to the voters so that a “yes” vote on the question is a vote to approve the federal statute.

Effective dates. —

This section became effective on December 27, 1996 (19th Legislature’s CSSJR 31(FIN) am H (reengrossed).)

Article XIII Amendment and Revision

Section 1. Amendments.

Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. The lieutenant governor shall prepare a ballot title and proposition summarizing each proposed amendment, and shall place them on the ballot for the next general election. If a majority of the votes cast on the proposition favor the amendment, it shall be adopted. Unless otherwise provided in the amendment, it becomes effective thirty days after the certification of the election returns by the lieutenant governor.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2(1970)), substituted “lieutenant governor” for “secretary of state” in the second and last sentences.

The amendment effective October 12, 1974 (8th Legislature’s HJR 20(1973)) substituted “general” for “statewide” near the end of the second sentence.

Editor’s notes. —

The amendment and a new section prohibiting a court from changing a proposed amendment that were proposed by 2000 Legislative Resolve 47 (HCS SJR 27 (FIN) am H) were rejected by voters.

Notes to Decisions

The United States Congress has no power to amend a state’s constitution. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

This article provides two methods of amending the constitution: (1) by a constitutional convention, followed by a ratification of the proposed amendment by the people, and (2) by a proposal that has obtained a two-thirds vote of each house of the legislature, and is adopted by the people by a majority vote at a statewide (now general) election. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

The constitution of the State of Alaska provides only two means for its amendment. This section authorizes such amendments by a two-thirds vote of each house of the legislature thereafter approved by a majority vote at the next statewide (now general) election. Alaska Const., art. XIII, § 4 provides for amendments by a constitutional convention subject to ratification by the people. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

The Alaska Constitution may not be amended by popular vote alone, without prior action by either the legislature or a constitutional convention. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Initiative for secession from United States was unconstitutional. —

Where appellant proposed a ballot initiative pursuant to Alaska Const. art. XI, § 1 calling for a statewide vote on whether Alaska should secede from the United States, the lieutenant governor correctly denied certification of the initiative under AS 15.45.080 . Secession from the union was clearly unconstitutional; in accordance with Alaska Const. art. XIII, §§ 1, 4, the people of Alaska could not effect constitutional change through the initiative process. Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

Adoption of proposition in Statehood Act did not amend constitution. —

Although included in Alaska Statehood Act, § 8(b), former 48 U.S.C. Prec. § 21, was the provision that in the event that three propositions to be submitted to the voters were adopted by a majority vote, “the proposed constitution of the proposed State of Alaska . . . shall be deemed amended accordingly,” and although the propositions were adopted, the Alaska Constitution was not thereby amended to include “the terms or conditions of the grants of land” set forth in Alaska Statehood Act, § 6(i), since there was no state legislature in existence at the time of passage of the Statehood Act, the territorial legislature never approved an amendment incorporating the restrictions of Alaska Statehood Act, § 6(i), which relates to mineral land grants, into the Alaska Constitution, and no constitutional convention was called to act on the matter. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Proper subject for amendment. —

A legislative resolve to amend the recognition of marriage in the state was sufficiently limited in both quantity and effect of change as to be a proper subject for a constitutional amendment, since few sections of the state Constitution were affected, and nothing in the proposal would necessarily or inevitably alter the basic government framework of the Constitution. Bess v. Ulmer, 985 P.2d 979 (Alaska 1999).

A ballot measure designed to alter the reapportionment scheme of the state Constitution, although a significant change in the system of state government, did not deprive the executive branch of its foundational power to enforce the laws of the state, and thus the proposal did not constitute a revision. Bess v. Ulmer, 985 P.2d 979 (Alaska 1999).

Quoted in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966).

Cited in

Forrer v. State, 471 P.3d 569 (Alaska 2020).

Section 2. Convention.

The legislature may call constitutional conventions at any time.

Notes to Decisions

Quoted in

Wade v. Nolan, 414 P.2d 689 (Alaska 1966); Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Section 3. Call by Referendum.

If during any ten-year period a constitutional convention has not been held, the lieutenant governor shall place on the ballot for the next general election the question: “Shall there be a Constitutional Convention?” If a majority of the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless the legislature provides for the election of the delegates at a special election. The lieutenant governor shall issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of members, districts, election and certification of delegates, and submission and ratification of revisions and ordinances. The appropriation provisions of the call shall be self-executing and shall constitute a first claim on the state treasury.

Effect of amendments. —

The amendment, effective October 10, 1970 (6th Legislature’s SJR 2(1970)), substituted “lieutenant governor” for “secretary of state” in the first and fourth sentences.

Notes to Decisions

Intent. —

Study of Alaska’s 1955-56 Constitutional Convention proceedings illuminates the purpose and intent of the framers in adopting the particular language which subsequently became this section. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

The purpose of holding elections is to ascertain the public will. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

And what voters mean cannot be arbitrarily assumed. —

Neither the courts nor the election authorities are authorized to arbitrarily assume that the voters meant something which cannot fairly be ascertained from the ballots themselves. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

The wording required by this section is unique in that it is the sole instance where the founding fathers believed it necessary to articulate the precise language which must be used in placing a particular proposition before the voters of Alaska. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Examination of the various provisions of the Alaska Constitution reveals that the founding fathers went to particular pains to prescribe the precise language which was to be employed in asking the electorate to decide whether a constitutional convention should be held. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

The unauthorized wording of the proposition required by this section was misconduct. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

The inclusion in the referendum ballot, by the executive officer charged with the duty of preparing the ballot, of unauthorized prefatory language was malconduct within the intendment of AS 15.20.540 (1). Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Unauthorized wording constituted fraud within the meaning of AS 15.20.540 . Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Dual burden of citizenry. —

Citizens have the dual burden of showing a significant deviation from the form prescribed by this section and that such departure was a magnitude sufficient to change the result of the referendum election. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Duty of court. —

The trial court has the duty to ensure that the question required to be presented to the electorate by this section be presented in the form prescribed by that provision of the constitution. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Where the executive officer charged with the legal duty of preparing the referendum ballot in accordance with the requirement of this section so far departs from the constitutionally prescribed form of ballot that the free expression of popular will was frustrated, the supreme court would be in default of its judicial office if it did not ensure that Alaska’s electorate are given the opportunity to express their will in response to a ballot that is drawn in conformity with the intent of the framers of the Constitution of Alaska. Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972).

Section 4. Powers.

Constitutional conventions shall have plenary power to amend or revise the constitution, subject only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention.

Notes to Decisions

The United States Congress has no power to amend a state’s constitution. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

The constitution of the State of Alaska provides only two means for its amendment. Alaska Const., art. XIII, § 1 authorizes such amendments by a two-thirds vote of each house of the legislature thereafter approved by a majority vote at the next statewide election. This section provides for amendments by a constitutional convention subject to ratification by the people. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Initiative for secession from the United States held unconstitutional. —

Where appellant proposed a ballot initiative pursuant to Alaska Const. art. XI, § 1 calling for a statewide vote on whether Alaska should secede from the United States, the lieutenant governor correctly denied certification of the initiative under AS 15.45.080 . Secession from the union was clearly unconstitutional; in accordance with Alaska Const. art. XIII, §§ 1, 4, the people of Alaska could not effect constitutional change through the initiative process. Kohlhaas v. State, 223 P.3d 105 (Alaska 2010).

The Alaska Constitution may not be amended by popular vote alone, without prior action by either the legislature or a constitutional convention. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Differentiation of amendments and revisions. —

The framers of the state Constitution explicitly contemplated the importance of the differentiation between amendments and revisions and between their respective fields of application. Bess v. Ulmer, 985 P.2d 979 (Alaska 1999).

In recognition of the distinction between amendments, which contemplate simple change, and revisions, which encompass broader and more comprehensive change, the framers of the state Constitution fashioned more stringent procedures for adopting revisions than for adopting amendments. Bess v. Ulmer, 985 P.2d 979 (Alaska 1999).

Impermissible revision. —

Where a legislative resolve to amend the rights afforded prisoners under the state Constitution substantively altered the substance and integrity of the Constitution, and would potentially alter as many as eleven separate sections of that document, both qualitatively and quantitatively, the resolve was an impermissible constitutional revision. Bess v. Ulmer, 985 P.2d 979 (Alaska 1999).

Adoption of provision in Statehood Act did not amend constitution. —

Although included in Alaska Statehood Act, § 8(b), former 48 U.S.C. Prec. § 21, was the provision that in the event that three propositions to be submitted to the voters were adopted by a majority vote, “the proposed constitution of the proposed State of Alaska . . . shall be deemed amended accordingly,” and although the propositions were adopted, the Alaska Constitution was not thereby amended to include “the terms or conditions of the grants of land” set forth in Alaska Statehood Act, § 6(i) since there was no state legislature in existence at the time of passage of the Statehood Act, the territorial legislature never approved an amendment incorporating the restrictions of Alaska Statehood Act, § 6(i), which relates to mineral land grants, into the Alaska Constitution, and no constitutional convention was called to act on the matter. State v. Lewis, 559 P.2d 630 (Alaska), cert. denied, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1073 (U.S. 1977).

Article XIV Apportionment Schedule

[Repealed by 1998 Ballot Measure No. 3 (1998 Legislative Resolve 74; 20th Legislature’s SCS CSHJR 44(JUD)).]

Redistricting. —

The election districts, senate districts, and descriptions of election districts originally set out in former secs. 1-3 of art. XIV were modified by proclamations of the governor dated December 7, 1961; December 30, 1971 (held unconstitutional in Egan v. Hammond , 502 P.2d 856 (Alaska 1972)); June 14, 1974 (modified in Groh v. Egan , 526 P.2d 863 (Alaska 1974)); July 24, 1981 (modified February 15, 1984 in response to the decision in Carpenter v. Hammond , 667 P.2d 1204 (Alaska), appeal dismissed, 464 U.S. 801, 104 S. Ct. 45, 78 L. Ed. 2d 67 (1983)); September 5, 1991 (held unconstitutional in part and modified for the 1992 elections in Hickel v. Southeast Conference , 846 P.2d 38 (Alaska 1992)); March 25, 1994; June 18, 2001 (declared unconstitutional in In re 2001 Redistricting Cases , 44 P.3d 141 (Alaska 2002)); and April 25, 2002 (upheld in In re Redistricting Cases , 47 P.3d 1089 (Alaska 2002)). Under the April 25, 2002 proclamation, the 40 election districts are:

1 Ketchikan

2 Sitka-Wrangell-Petersberg

3 Juneau-Downtown-Douglas

4 Juneau-Mendenhall Valley

5 Cordova-Southeast Islands

6 Interior Villages

7 Farmers Loop-Steese Highway

8 Denali-University

9 City of Fairbanks

10 Fairbanks-Fort Wainwright

11 North Pole

12 Richardson-Glenn Highways

13 Greater Palmer

14 Greater Wasilla

15 Rural Mat-Su

16 Chugiak-South Mat-Su

17 Eagle River

18 Military

19 Muldoon

20 Mountain View-Wonder Park

21 Baxter Bog

22 University-Airport Heights

23 Downtown-Rogers Park

24 Midtown-Taku

25 East Spenard

26 Turnagain-Inlet View

27 Sand Lake

28 Bayshore-Klatt

29 Campbell-Independence Park

30 Lore-Abbott

31 Huffman-Ocean View

32 Chugach State Park

33 Kenai-Soldotna

34 Rural Kenai

35 Homer-Seward

36 Kodiak

37 Bristol Bay-Aleutians

38 Bethel

39 Bering Straits

40 Arctic

The 20 senate districts under the April 25, 2002 proclamation are:

A Ketchikan-Sitka-Wrangell-Petersburg

B Juneau-Downtown-Douglas-Mendenhall Valley

C Cordova-Southeast Islands-Interior Villages

D Farmers Loop-Steese Highway-Denali-University

E City of Fairbanks-Fort Wainwright

F North Pole-Richardson/Glenn Highways

G Greater Palmer-Greater Wasilla

H Rural Mat-Su-Chugiak-South Mat-Su

I Eagle River-Military

J Muldoon-Mountain View-Wonder Park

K Baxter Bog-University-Airport Heights

L Downtown-Rogers Park-Midtown-Taku

M East Spenard-Turnagain-Inlet View

N Sand Lake-Bayshore-Klatt

O Campbell-Independence Park-Lore-Abbott

P Huffman-Ocean View-Chugach State Park

Q Kenai-Soldotna-Rural Kenai

R Homer-Seward-Kodiak

S Bristol Bay/Aleutians-Bethel

T Bering Straits-Arctic

Description of Election Districts. Under the April 25, 2002 Proclamation, the 40 election districts are as follows:

House District 1-Senate District A: Ketchikan. House District 1 includes all uplands and islands bounded by a line beginning at the northernmost point of Coffman Cove City, southeasterly along the city boundary to the western shore of Clarence Strait, south to an intersection with the mouth of Eagle Creek, easterly to the centerline of Clarence Strait, southeasterly along the centerline to a point due west of Lemesurier Point, east to Lemesurier Point, east across Union Bay to Union Point, east across Vixen Inlet to the eastern shore of Ernest Sound, northeasterly along the shore to the head of Santa Anna Inlet, easterly along a nonvisible line to the common boundary of the Wrangell-Petersburg and Prince of Wales-Outer Ketchikan Census Areas, northeasterly along the common census area boundary to Grant Creek, easterly to Burroughs Bay, southerly to Ketchikan Gateway Borough, southerly and westerly along the borough boundary (around Gravina Island) to a point due east of Grindall Island, west to Grindall Island, west along its south shore, west across Grindall Passage to the shore of Kasaan Bay, west along the shore to Kasaan City, north and west around the city boundary to Thorne Bay Road, north along the road to Thorne Bay City, west and south along the city boundary to its southwesternmost point in Kasaan Bay, southwesterly through the water to the centerline of Twelvemile Arm, southwest along the centerline of the arm, to and including Cat Island, west to the mouth of Harris River, west and north to its headwaters, west along a nonvisible line to Black Bear Lake, west following its northern shore to a linking creek to Black Lake, north along a linking creek to an intersection (just south of Big Salt Lake) with Big Salt Road, north to North Island Road, northwest to National Forest Development Road 23, north to National Forest Development Road 30, east to Logjam Creek, north to Sweetwater Lake, north along the lake’s western shore to Barnes Lake, east along the lake’s southern shore to Coffman Cove City, east along the city boundary to point of beginning. The house district has a population of 15,031 and a variance of -4.10%. The house district will elect one house member and, with House District 2, one senator.

House District 2-Senate District A: Sitka/Wrangell/Petersburg. House District 2 includes all islands bounded by a line beginning at the center point of the entrance to Cross Sound, northeast along the centerline of Cross Sound to the northernmost island of the Inian Islands, including all of the Inian Islands, continue to the western shore of Idaho Inlet on Inian Peninsula, south along the shore to the mouth of Trail River, southeast to its headwaters, southeast along a nonvisible line feature to the City and Borough of Sitka, east and south along the borough boundary to a point due west of Tebenkof Bay, east along the centerline of Tebenkof Bay to the mouth of Alecks Creek on Kuiu Island, north to Alecks Lake, north along its southern shore to the northeasternmost tip of the lake, southeast along a nonvisible line to the head of No Name Bay, east along the centerline of the bay to Keku Strait, north along its centerline to a point due west of Tunehean Creek, east to the coast of Kupreanof Island at the creek, north along the coast to the mouth of Keku Creek, east to its headwaters, south along a nonvisible line to the headwaters of Castle River, east to its mouth at Duncan Canal, north along the canal shore to the mouth of Duncan Creek, east to Duncan Canal Portage Trail, east to Coho Creek, east to Kupreanof City, north and east along the city boundary to Petersburg City, south along the city boundary to its southeasternmost point, east to Frederick Sound, south along its centerline to Dry Strait, south along its centerline to the northernmost point of Wrangell City, east along the city boundary to Eastern Passage, south along its centerline to Blake Channel, south along its centerline to the entrance of Bradfield Canal, south across the canal to the southern shore of Ernest Sound, south along the shore to Seward Passage, south to the intersection with House District 1 at the head of Santa Anna Inlet, westerly and northerly along the boundary of House District 1 to Clarence Strait (due east of Eagle Creek), north along its centerline to Snow Passage, northwest along its centerline to Sumner Strait, west and south along its centerline to and around Coronation Island to Chatham Strait, north along its centerline to a point due east of the southernmost point of the City and Borough of Sitka, west to the borough boundary, north along the western borough boundary to its northwesternmost point, north through the Pacific Ocean to point of beginning. The house district has a population of 14,991 and a variance of -4.35%. The house district will elect one house member and, with House District 1, one senator.

House District 3-Senate District B: Juneau/Downtown/Douglas. House District 3 includes the area of the City and Borough of Juneau bounded by a line beginning at a point on the borough boundary south and west of Outer Point, northeasterly through the center line of Stephens Passage and Fritz Cove to the mouth of Mendenhall River, north along its eastern bank to Egan Drive, east to Jordan Creek, north to Jordan Creek Tributary, east to Thunder Mountain Trail and Heintzleman Ridge, northeast along the ridge to Thunder Mountain, continuing east on the ridge to a point just southeast of the headwaters of Steep Creek, northwest along a nonvisible line to Steep Creek, northwesterly to Glacier Spur Road, north to the shore of Mendenhall Lake, east around the lake to the western edge of Mendenhall Glacier, north to Juneau Icefield, follow western bank of Ice field past Eagle, Thiel, and Gilkey glaciers to intersection with City and Borough of Juneau at the Canadian Border, southerly along and around the borough boundary to point of beginning. The house district has a population of 15,203 and a variance of -3.00%. The house district will elect one house member and, with House District 4, one senator.

House District 4-Senate District B: Juneau/Mendenhall Valley. House District 4 includes the area of the City and Borough of Juneau bounded by a line beginning at a point on the northwesternmost corner of the borough boundary, east and south along the borough boundary to its intersection with House District 3, south along the House District 3 boundary to its intersection with the borough boundary south and west of Outer Point, northerly along the borough boundary to point of beginning. The house district has a population of 15,508 and a variance of -1.05%. The house district will elect one house member and, with House District 3, one senator.

House District 5-Senate District C: Cordova/Southeast Islands. House District 5 includes all uplands and islands bounded by a line beginning at the intersection of a point on the northeastern boundary of the Kenai Peninsula Borough and the northern shore of Blackstone Bay, northeast along the bay shore to its intersection with Whittier City, east along the city boundary to the north shore of Blackstone Bay, east along the bay shore to its end at Strong Point, east across the mouth of Passage Canal and continuing on with a Prince William Sound Traverse across the mouths of Port Wells, Lake Bay, Quillian Bay, Esther Passage, Esther Bay, Squaw Bay, Eaglek Bay, Unakwik Inlet, Wells Bay, Fairmount Bay, Eickelberg Bay, Long Channel, Columbia and Heather Bays, and Sawmill Bay to the western boundary of Valdez City, following the city boundary east and north to Lowe River, east along the river to Chugach National Forest, easterly along the forest boundary to the Chugach Alaska Native Regional Corporation (ANRC) boundary, east and south along the ANRC boundary to the City and Borough of Yakutat, east along the northern borough boundary to its southernmost point, and including all of the remaining areas of Southeast Alaska not contained in House Districts 1, 2, 3 or 4. The bounded area is closed by continuing west along the coastal boundary of the City and Borough of Yakutat to its southwesternmost point, following the nautical 3-mile limit to the eastern boundary of Kenai Peninsula Borough, north to point of beginning. The house district has a population of 15,048 and a variance of -3.99%. The house district will elect one house member and, with House District 6, one senator.

House District 6-Senate District C: Interior Villages. House District 6 is bounded by a line beginning at the intersection of the common boundary of the Bering Straits and Yukon Koyukuk Rural Education Attendance Areas (REAAs) and the Northwest Arctic Borough, north along the borough boundary to its intersection with the North Slope Borough, east along the borough boundary to its intersection with the Alaskan/Canadian border, south along the border to the City and Borough of Yakutat, west along the borough boundary to the Ahtna ANRC, west along the ANRC boundary to the Copper River, north along its western bank to Urantina River, north to its headwaters, north along a nonvisible line to the headwaters of Bernard Creek, north to a point east of the intersection of Bernard Creek Trail and an unnamed trail, north along the creek trail to the Richardson Highway, north to Squirrel Creek, west to Trans Alaska Pipeline (TAPs), east to its intersection with a road just south of Pippin Lake, east to Richardson Highway, north to 16APL-3 Road, west to TAPs, north to 19APL-1 Road, east to Richardson Highway, continuing east along a nonvisible line to the Copper River, north along its western bank to the Klutina River, east to the New Richardson Highway, north to the Old Richardson Highway, north to the southern boundary of Tazlina ANVSA, west along the ANVSA boundary to TAPs, north to the Tazlina River, east along its northern shore to a trail that connects with the intersection of Copperville Road and the Old Richardson Highway, north along the highway to the Glenn Highway, west to TAPs, north to its intersection with the Richardson Highway (just west of Sourdough and Haggard Creeks), north to Paxson Lake Campground Road, east along a nonvisible line to TAPs, north to the Richardson Highway (just west of Fielding Lake), north to Fort Greely Military Reservation (just west of Butch Lake), north and east along the military boundary to the Richardson Highway (just north of TAPs Pump Station 9 Access Road), north along the highway to the City of Delta Junction, east and north along the city boundary to Nistler Road, east to Souhrada Road, north to Jack Warren Road, west to Fales Road, north to Clearwater Lake, west along the shore to an unnamed creek connecting to the Tanana River, east along its south bank to the mouth of Clearwater Creek, north across the Tanana River, continuing east along its northern bank to an intersection with the Volkmar River, north along a nonvisible line to Volkmar Lake, west around the lake to its northernmost point, east along a nonvisible line to White Peak, north to the intersection of Goodpaster River and South Fork (Goodpaster River), east along the South Fork to Delta Greely REAA, north along the REAA boundary to Fairbanks North Star Borough, north, west and south around the borough to the Tanana River, west along its southern bank to the City of Nenana, south along the city boundary to FAA Way, south to a sled trail (paralleling George Parks Highway), south to Denali Borough, west and south along the borough boundary to its intersection with Matanuska-Susitna Borough, south along the borough boundary to its intersection with Kenai Peninsula Borough, east along the borough boundary to the midpoint of Cook Inlet, south along the midpoint to its intersection with House District 35, west along the district boundary to the mouth of Drift River, west along the river to Lake Clark National Park and Wilderness Area, west along the park/wilderness boundary to a point due east of Summit Lake, west to and around the lake’s south shore to Tlikakila River, west to Lake and Peninsula Borough, north and west along the borough boundary to the common boundary of Calista and Bristol Bay ANRCs, west along the common boundary to its intersection with the common boundary of Lower Kuskokwim and Kuspuk REAAs, west along the common REAA boundary to the Kuskokwim River, north along its western bank to the City of Lower Kalskag, east along the city boundary to the City of Upper Kalskag, north and west around the city boundary to the Yukon Kuskokwim Portage Trail, north to its intersection with Bethel Census Area, west along the census area boundary to a point south of the headwaters of the Pitnik River, north along the river to a point just south of the Kashunuk River, north to the river, east to Driftwood Slough, east to the Yukon River, east along its southern bank to Atchuelinguk River, east along its northern bank to its headwaters, north along a nonvisible line to the Bering Straits ANRC, east and north to point of beginning. The house district has a population of 14,905 and a variance of -4.90%. The house district will elect one house member and, with House District 5, one senator.

House District 7-Senate District D: Farmers Loop/ Steese Highway. House District 7 is bounded by a line beginning at the intersection of the Chatanika River and Fairbanks North Star Borough, north and east along the borough boundary to a point north of the headwaters of Ottertail creek, west to the Middle Fork Chena River, west to Chena Hot Springs Road, west to Flat Creek, south to Chena River, west to a point northeast of the end of Repp Road, west along a trail to Repp Road, west to Brock Road, north to Whitman Road, west to an unnamed road that intersects an unnamed stream, northwest along the creek to the Chena River, west along its southern bank to the City of Fairbanks, west and north along the city boundary to College Road, west to the City of Fairbanks, west along the city boundary to a point where it departs from Noyes Slough, west along the northern bank of the slough to Sandvik Street, west to University Avenue, north to Farmers Loop, north to Yankovich Road, west to Miller Hill Road, north to the intersection of Goldstream Creek and O’Conner Creek, north along O’Conner Creek to Miller Hill Road, north to Goldstream Road, west to Nugget Loop, west to O’Conner Creek, north to Hattie Creek, north to Old Murphy Dome Road, north along an unnamed trail to Our Creek, north to Chatanika River, west to point of beginning. The house district has a population of 15,494 and a variance of -1.14%. The house district will elect one house member and, with House District 8, one senator.

House District 8-Senate District D: Denali/University. House District 8 is bounded by a line beginning at the southwesternmost point of Denali Borough, northeasterly along the borough boundary to a “Sled Road” (east of George Parks Highway), north to FAA Way, north to the City of Nenana, north along the city boundary to the Tanana River, east along its southern bank to Fairbanks North Star Borough, north along the borough boundary to the Chatanika River, east to Our Creek, south to an unnamed trail, south to Old Murphy Dome Road, east to an unnamed road, west to Hattie Creek, south to O’Conner Creek, south to Nugget Loop, east to Goldstream Road, east to Miller Hill Road, south to O’Conner Creek, south to its intersection with Goldstream Creek, south to Miller Hill Road, south to Yankovich Road, east to Farmers Loop Road, south to University Avenue, south to Sandvik Street, east to Noyes Slough, south along its western bank to the Chena River, east to University Avenue, south to Airport Way, west to Sportsman Way, south to Old Airport Road, west to an access road to Robert Mitchell Expressway, south and east to Peger Road, south to the Tanana River, east along its north bank to the City of Fairbanks, east along the city boundary to the point where it turns northerly (at the common boundary with Fort Wainwright Military Reservation), south along the reservation boundary to its second intersection with the Tanana River, east along the military boundary to the easterly most braid of the Tanana River, south along the easternmost bank to Twentythree Mile Slough, south to Eielson Air Force Base, south along the base boundary to the Tanana River, south along its eastern bank to a point due west of Xantheus Way, west to the river’s western bank, south to Fairbanks North Star Borough, westerly along the borough boundary to Denali Borough, south and west along the borough boundary to point of beginning. The house district has a population of 15,552 and a variance of -0.77%. The house district will elect one house member and, with House District 7, one senator.

House District 9-Senate District E: City of Fairbanks. House District 9 is bounded by a line beginning at the intersection of Airport Way and City of Fairbanks, north along the city boundary to the north shore of Chena River, east to Noyes Slough, north and east along its western shore to the City of Fairbanks, north and east along the city boundary to a point where it departs from College Road, east along College Road to the City of Fairbanks, south along the city boundary to Noyes Slough, east along its northern shore to the Chena River, west across the mouth of the slough, west along the northern shore of Chena River to Cushman Street, south to 30th Avenue, west to Van Horn Road, south to an unnamed creek (just north of Van Horn Court), west along the creek to Shell Street, south to Standard Avenue, west to the City of Fairbanks, north along the city boundary to the Robert Mitchell Expressway, west to an unnamed road, north to Old Airport Road, east to Sportsman Way, north to Airport Way, east to point of beginning. The house district has a population of 15,723 and a variance of -0.32%. The house district will elect one house member and, with House District 10, one senator.

House District 10-Senate District E: Fairbanks/Fort Wainwright. House District 10 is bounded by a line beginning at the intersection of College Road and the City of Fairbanks, east and south along the city boundary to a point on Holmes Road where it turns north to intersect Badger Loop Road, west along the Fort Wainwright Military Reservation boundary to the City of Fairbanks, south and west along the city boundary to a point where it departs north from the Tanana River, west along the north bank of the Tanana River to a point just south of Peger Road, east along an unnamed water feature to Peger Road, north to Standard Avenue, east to Shell Street, north to an unnamed stream, east to its intersection with Van Horn Road, north to 30th Avenue, east to Cushman Street, north to Chena River, east along its northern bank to Noyes Slough, north and west along its eastern bank to the City of Fairbanks, north along the city boundary to point of beginning. The house district has a population of 15,599 and a variance of -0.47%. The house district will elect one house member and, with House District 9, one senator.

House District 11-Senate District F: North Pole. House District 11 is bounded by a line beginning at the intersection of the City of Fairbanks and the Chena River, east along the river’s southern bank to a point just past its intersection with Steele Creek, south along an unnamed stream to Whitman Road, east to Brock Road, south to Repp Road, east to its end, northeast along a trail to its end, continuing northeast along a nonvisible line to the Chena River, east along its southern bank to the Yukon Command Training Site, south along the site’s western boundary to Eielson Air Force Base, south along the base’s western boundary to Twentythree Mile Slough, north to Tanana River, north along the river’s eastern bank to Fort Wainwright Military Reservation, west along the reservation boundary to the western bank of the Tanana River, north along the river’s western bank to a point just south of the common reservation and City of Fairbanks boundary, north along the reservation boundary to point of beginning. The house district has a population of 15,904 and a variance of 1.47%. The house district will elect one house member and, with House District 12, one senator.

House District 12-Senate District F: Richardson/Glenn Highways. House District 12 is bounded by a line beginning at a point on the northern boundary of Matanuska-Susitna Borough where it meets the common Doyon/Ahtna ANRC boundary, east along the borough boundary to the eastern boundary of Denali Borough, north along the Denali Borough boundary to Fairbanks North Star Borough, east along the borough boundary to the Tanana River, north along its western bank to a point due west of Xantheus Way, east to the river’s eastern bank, north to Eielson Air Force Base, north along the base boundary to the Chena River, east to Flat Creek, north to Chena Hot Springs Road, east to a trail which intersects the Chena River and Middle Fork Chena River, east along the Middle Fork Chena River to Ottertail Creek, east and north to Fairbanks North Star Borough, easterly around the borough boundary to the common Delta Greely and Alaska Gateway REAA boundary, south along the common boundary to the South Fork (Goodpaster River), west to Goodpaster River, south from that intersection along a nonvisible line to White Peak, west to Volkmar Lake, south along its eastern shore to the southern tip, south along a nonvisible line to the intersection of the Volkmar River and the Tanana River, west along the northern shore of the Tanana River to a point opposite the mouth of Clearwater Creek, south to the creek mouth, west along the southern shore of the Tanana River to an unnamed creek (connecting to Clearwater Lake), south to and around the lake to Fales Road, south to Jack Warren Road, east to Souhrada Road, south to Nistler Road, west to Delta Junction City, south and west along the city boundary to the Richardson Highway, south to Fort Greely Military Reservation, east and south along the reservation boundary to the Richardson Highway, south to TAPs (just east of Fielding Lake), south along TAPs to a point due east of the intersection of the Richardson Highway and Paxson Lake Campground Road, west along a nonvisible line to Richardson Highway, south along the highway to TAPs (just west of the intersection of Sourdough and Haggard Creeks), south along TAPs to the Glenn Highway, east to Old Richardson Highway, south along the highway to Copperville Road, west from that intersection along an unnamed trail to the Tazlina River, west to TAPs, south along TAPs to the southern boundary of the Tazlina ANVSA, east to Old Richardson Highway, south to New Richardson Highway, south to the Klutina River, east to the Copper River, south along its western bank to a point due east of the intersection of the Richardson Highway and 19APL-1 Road, west along the road to TAPs, south to 16APL-3 Road, east to Richardson Highway, south along the highway to an unnamed road (just south of Pippin Lake), west to TAPs, south to Squirrel Creek, south to Richardson Highway, south to Bernard Creek Trail, south along the trail to Bernard Creek, south to its headwaters, south along a nonvisible line to the headwaters of Uranatina River, south to the Copper River, south along its western bank to Chugach National Forest, west along the forest boundary to Lowe River, west to TAPs, west to the City of Valdez, southerly around the city boundary to the northern shore of Valdez Arm, westerly along a Prince William Sound Traverse across the mouths of Sawmill Bay, Heather and Columbia Bays, Long Channel, Eickelberg Bay, Fairmount Bay, Wells Bay, Unakwik Inlet, Eaglek Bay, Squaw Bay, Esther Bay, Esther Passage, Quillian Bay, Lake Bay, Port Wells and Passage Canal to Strong Point, north along the shore of Passage Canal to the City of Whittier, west to Municipality of Anchorage, north along the municipality boundary to Matanuska-Susitna Borough, west along the borough boundary to Glacier Fork, west to Metal Creek, north to its headwaters, west along a nonvisible line to the headwaters of Carpenter Creek, north to the Matanuska River, west along its northern shore to Palmer-Fishhook Road, west to Werner Road, north to Biscane Drive, east to Monte Carlo Lane, north to Farm Loop Road, west and north to Britchenstrap Drive, north to its end, continuing north along a nonvisible line to Koenen Road, west to Showers Street, south to Crabb Circle, west to Wasilla Creek, north to the end of one of its unnamed tributaries, north along a nonvisible line to the headwaters of Delia Creek, north to Little Susitna River, south to Fishhook Creek, west to Fishhook-Willow Road, west to Bald Mountain Ridge, north and east along the ridge to the Talkeetna Mountains, east to a point due south of the headwaters of Bartholf Creek, north to its intersection with the Kashwitna River, north along a nonvisible line to the headwaters of Sheep Creek, west to its intersection with the Iron Creek Trail, north along the trail to Iron Creek, west to Talkeetna River, east to Cache Creek, west to its headwaters, north along a nonvisible line to the intersection of Chunilna Creek and a foot trail, north along the trail to Old Bur Rec Trail, east to Susitna River, west to Portage Creek, east to Thoroughfare Creek, north to its headwaters, east along a nonvisible line to the headwaters of Crooked Creek, north to the Ahtna ANRC boundary, west and north to point of beginning. The house district has a population of 16,303 and a variance of 4.02%. The house district will elect one house member and, with House District 11, one senator.

House District 13-Senate District G: Greater Palmer. House District 13 is bounded by a line beginning at a point on the Bald Mountain Ridge just opposite the headwaters of Grubstake Gulch, northeasterly along the ridge to Fishhook-Willow Road, east to Fishhook Creek, east to Little Susitna River, north to Delia Creek, south to its headwaters, continuing south along a nonvisible line to a tributary of Wasilla Creek, south to and along Wasilla Creek to Crabb Circle, east to Showers Street, north to its end, east to a path, continuing east to Koenen Road, east to its end, south along a nonvisible line to Britchenstrap Drive, south to Farm Loop, west and south to Corvette Drive, east to Monte Carlo Lane, south to Biscane Drive, west to Werner Road, south to Palmer-Fishhook Road, east to the Matanuska River, south along its western bank to a point due east of the end of Lawalter Road, west to Lawalter Road, west to Outer Springer Loop, south and west to Inner Springer Loop, west to the Alaska Railroad, west to Wasilla Creek, north to George Parks Highway, east to Hyer Road, east to Grantham Road, north to Outer View Drive, north to Portage Drive, west to Glacier Drive, north to Meadow Lane, west to Serrano Drive, north and east to Skip Circle, north to Palmer-Wasilla Highway, west to Luke Street, north to Mayflower Lane, east to Colonial Drive, north to Union Jack Drive, west to Revolutionary Way, east to Freedom Way, north to Windridge Avenue, west to a Portage Trail, north to Cottonwood Lake, west along its shore to a point due south of Blueberry Drive, north to the intersection of Blueberry Drive and Birch Drive, north to Crowberry Drive, east to Cottonwood Loop, north to Aspen Street, west to Alder Drive, north to Estony Hollow Drive, west to Bogard Road, north to Gruman Circle, north to Travel Air Drive, north to a point on the drive just south of its intersection with Sams Drive, west to Anderson Lake, north around the lake’s shore to a point due south of Delta Street, north to Delta Street, east to Shaw’s Drive, north to Charley Drive, north to Charwood Lane, east to Cedarwood Drive, north to Mosswood Drive, west to Sorrelwood Street, north to its end, continuing north along a nonvisible line to the intersection of Wasilla-Fishhook Road and Pamela Drive, west on Pamela Drive to Starwood Drive, west to Windflower Drive, south to Pamela Drive, west to a point on the drive due north of the end of Tanis Road, north along a nonvisible line to the Little Susitna River, easterly along its north bank to an intersection with an unnamed stream (just east of Cols Patton Extended), north along the creek to point of beginning. The house district has a population of 16,231 and a variance of 3.56%. The house district will elect one house member and, with House District 14, one senator.

House District 14-Senate District G: Greater Wasilla. House District 14 is bounded by a line beginning at the intersection of Lucile Creek and the western boundary of Wasilla City, north and east along the city boundary to Jacobsen Lake, easterly around the lake to Happy Little Road, east to Seims Street, north to George Parks Highway, west to Stanley Road, north to Machen Road, east to Day Road, north and west to Stanley Road, north to the end of Stanley Road, continuing north along a nonvisible line to intersect an unnamed stream just south of Bruce Lake, east to Church Road, north to Schrock Road, east to Sushana Drive, north to Coal Creek, north to the creek headwaters, continuing north along a nonvisible line to Bald Mountain Ridge, east to a point on the ridge just opposite Grubstake Gulch, south to the headwaters of an unnamed stream, south along the creek to Little Susitna River, west along the northern bank of the river to a point just west of a trail feature extending from Coles Patton Extended Road, south across the river and continuing south along a nonvisible line to Pamela Drive, east to Windflower Drive, north to Starwood Drive, east to Pamela Drive, east to intersect Wasilla-Fishhook Road, due south from the intersection to the end of Sorrelwood Street, south to Mosswood Drive, east to Cedarwood Drive, south to Charwood Lane, west to Charley Drive, south to Shaw’s Drive, west to Delta Street, southwest to intersect Anderson Lake, southerly around the lake to a point opposite the intersection of Travel Air Drive and Sams Drive, east to Travel Air Drive, south to Gruman Circle, south to Bogard Road, south to Estony Hollow Drive, east to Alder Drive, south to Aspen Street, east to Cottonwood Loop, south to Crowberry Drive, west to Blueberry Drive, south to its intersection with Birch Drive and continuing south along a nonvisible line to Cottonwood Lake, west around the lake shore to Portage Trail, south to Windridge Avenue, east to Freedom Way, south to Revolutionary Way, west to Union Jack Drive, east to Colonial Drive, south to Mayflower Lane, west to Luke Street, south to Palmer-Wasilla Highway, east to Skip Circle, south to Serrano Drive, south to Meadow Drive, east to Glacier Drive, south to Portage Drive, east to Outer View Drive, south to Grantham Road, south to Hyer Road, south to George Parks Highway, west to Wasilla Creek, south to the Alaska Railroad, west to Fair-view Loop, south and west to Cotton Drive, north to Wasilla City, west along the city boundary to Cottonwood Creek, west to Edlund Road, north to Knik Goose Bay Road, west to Foothills Boulevard, north to Lucile Creek, east to point of beginning. The house district has a population of 16,119 and a variance of 2.84%. The house district will elect one house member and, with House District 13, one senator.

House District 15-Senate District H: Rural Mat-Su. House District 15 includes all uplands and islands bounded by a line beginning at the northwesternmost corner of the Matanuska-Susitna Borough, easterly along the borough boundary to Doyon ANRC, south and east along the ANRC boundary to Crooked Creek, south to its headwaters, westerly along a nonvisible line to the headwaters of Thoroughfare Creek, south to Portage Creek, west to Susitna River, east along its northern bank to Old Bur Rec Trail, south along a series of unnamed foot trails and a nonvisible line to the headwaters of Cache Creek, east to Talkeetna River, west to Iron Creek, south to Iron Creek Trail, south along the trail to Sheep Creek, east to the creek headwaters, south along a nonvisible line to the intersection of Kashwitna River and Bartholf Creek, south along the creek to its headwaters in the Talkeetna Mountains, westerly through the Talkeetna Mountains to Bald Mountain Ridge, westerly along the ridge to a point by the headwaters of Coal Creek, south along the creek to Sushana Drive, south to Schrock road, west to Church Road, south to its intersection with an unnamed creek (just east of Bruce Lake), west along the creek to a point due north of Stanley Road, south to and along the road to Day Road, east and south to Machen Road, west to Stanley Road, south to George Parks Highway, east to Seims Street, south to Happy Little Road, south to Jacobsen Lake, east along the lake shore to Wasilla City, west along the city boundary to its intersection with Lucile Creek, west to Foothills Boulevard, south to Knik-Goose Bay Road, west to a point due west of Binnacle Drive, south along a trail to the end of Binnacle Drive, continuing south along a nonvisible line to Crocker Creek, west along the creek to Settlers Bay Drive, south to Crocker Creek, south to the mouth of Crocker Creek, south through Knik Arm to the Matanuska-Susitna Borough boundary, west and north to point of beginning. The house district has a population of 16,137 and a variance of 2.96%. The house district will elect one house member and, with House District 16, one senator.

House District 16-Senate District H: Chugiak/South Mat-Su. House District 16 includes all uplands and islands bounded by a line beginning at the mouth of Crocker Creek in the Matanuska-Susitna Borough, north along the creek to Settlers Bay Drive, north to Crocker Creek, east along the creek to a point due south of the end of Binnacle Drive, north along a nonvisible line to the end of Binnacle Drive, continuing north to intersect Knik-Goose Bay Road, east to Edlund Road, south to Cottonwood Creek, east to its intersection with Wasilla City, east and south along the city boundary to Cotton Drive, south to Fairview Loop, east to the Alaska Railroad, east and north to Inner Springer Loop, east to Outer Springer Loop, east and north to Lawalter Road, east to the road’s end, continuing east along a nonvisible extension to Matanuska River, north and east along the western river bank to Carpenter Creek, south to the midpoint of a nonvisible line between a mountain peak called ‘Glacier 7190’ and the headwaters of Metal Creek, east along the nonvisible line to Metal Creek, south along the creek to Glacier Fork, east to the Municipality of Anchorage, south along the municipality boundary to the common boundary of Lake George National Natural Landmark and Chugach National Forest, west along the forest boundary to a natural ridge line running along the Eagle Glacier, north to Whiteout Glacier, continuing northwest to Peril Peak, northwest to the headwaters of Peters Creek, north to a point on the creek due east of Mount Magnificent, west along a nonvisible line to Mount Magnificent, west to the headwaters of Meadow Creek, west to Chugach State Park, north along the park boundary to Carol Creek, west to Savage Drive, north to Fish Hatchery Road, west to Old Glenn Highway, east to Lake Ridge Drive, north to Caspian Court, east to Darby Road, east to Old Glenn Highway, north to Birchwood Loop Road, west to on-ramp of New Glenn Highway, continuing north along the highway to Parks Creek, north to Mink Creek, west to Werre Street, north to Richner Road, west to Mink Creek, north to Fire Creek, north to the creek mouth at Knik Arm, north through the waters of Knik Arm to the common boundary of the Municipality of Anchorage and the Matanuska-Susitna Borough, north to point of beginning. The house district has a population of 16,104 and a variance of 2.75%. The house district will elect one house member and, with House District 15, one senator.

House District 17-Senate District I: Eagle River. House District 17 is bounded by a line beginning at the intersection of the New Glenn Highway and Eagle River Access Road, east along the access road to Carol Creek, east to Chugach State Park, westerly and southerly along the park boundary to Steeple Drive, south to Eagle River Lane, south to the lane’s end, continuing south along a nonvisible line to the eastern end of Highland Ridge Drive, west and south to Driftwood Bay Drive, west to Eagle Loop Road, south to Eagle River, west along its north bank to Fort Richardson Military Base, north along the base boundary to a point due west of the intersection of Breckenridge Drive and Farm Avenue, east to the New Glenn Highway, east to point of beginning. The house district has a population of 15,819 and a variance of 0.93%. The house district will elect one house member and, with House District 18, one senator.

House District 18-Senate District I: Military. House District 18 is bounded by a line beginning at a point on the Municipality of Anchorage boundary north of the mouth of Fire Creek, southerly through Knik Arm to the creek, southerly along the creek to Mink Creek, south to a point due west of the end of Richner Road, east to and along the road to Werre Street, south to Mink Creek, east to Parks Creek, south to the New Glenn Highway, south to Birchwood Loop Road, east to Old Glenn Highway, south to Darby Road, west to Caspian Court, west to Lake Ridge Drive, south to Old Glenn Highway, west to Fish Hatchery Road, east to Savage Drive, south to Carol Creek, west to Eagle River Access Road, west to the New Glenn Highway, west to a point on the highway just west of the intersection of Breckenridge Drive and Farm Avenue, west to Fort Richardson Military Reservation Base, south along the base boundary to Glenn Highway, west along the highway to Centennial Park, south along the park boundary to Boundary Avenue, west to Muldoon Road, south to Duben Avenue, west to Oklahoma Street, north to Access Road, west to Patterson Street, north along a nonvisible line to the Glenn Highway, west to McCarrey Street, north to Vandenberg Avenue, west to Pine Street, north to McPhee Avenue, west to the end of McPhee Avenue, continuing west along the Elmendorf Air Force Base boundary to the Alaska Railroad, west along the railroad to Port Access Loop Road, north to Loop Road, east to Bluff Drive, west to Ocean Dock Road, south to Terminal Lease (North Star) Access Road, west to Knik Arm shore, west through Knik Arm to the Municipality of Anchorage boundary, east along the boundary to point of beginning. The house district has a population of 15,639 and a variance of -0.22%. The house district will elect one house member and, with House District 17, one senator.

House District 19-Senate District J: Muldoon. House District 19 is bounded by a line beginning at the intersection of Boniface Parkway and Pilgrim Drive, east to Plymouth Drive, north to 6th Avenue, east to Staedem Drive, east to 6th Avenue, east to Donna Drive, east to Turpin Street, north to 6th Avenue, east to Jordt Circle, east to Fredericks Drive, north and east to Patterson Street, north to Duben Avenue, east to Muldoon Road, north to Boundary Avenue, east to Fort Richardson Military Firing Range, south along the military boundary to a Power Line Right-of-way (ROW), west along the ROW to the end of Northern Lights Boulevard, west to Augustine Drive, north to Lake George Drive, north to Chandalar Drive, east to 21st Avenue, west to Paxson Drive, north to Chester Creek South Branch, west to a nonvisible extension of Colgate Drive, west to and along Colgate Drive to Baxter Road, north to Beaver Place, north to an access road to MOA Parks and Rec area, west along the Parks and Rec boundary to the end of Chester Creek Middle Branch, north to the end of Craig Drive, west to Penn Circle, south to 20th Avenue, west to Boniface Parkway, north to point of beginning. The house district has a population of 15,841 and a variance of 1.07%. The house district will elect one house member and, with House District 20, one senator.

House District 20-Senate District J: Mountain View/Wonder Park. House District 20 is bounded by a line beginning at the western end of Thompson Avenue, east to Taylor Street, north to Elmendorf Air Force Base, east along the base boundary to McPhee Avenue, east to Pine Street, south to Vandenberg Avenue, east to Mc Carrey Street, south to Glenn Highway, east to a point on the highway just north of Patterson Street, south to intersection of Patterson Street and Access Road, east to Oklahoma Street, south to Duben Avenue, west to Patterson Street, south to Fredericks Drive, west and south to Jordt Circle, west to 6th Avenue, west to Turpin Street, south to Donna Drive, west to 6th Avenue, west to Staedem Drive, west to 6th Avenue, west to Plymouth Drive, south to Pilgrim Drive, west to Boniface Parkway, south to Debarr Road, west to Pine Street, north to San Roberto Avenue, west to Hoyt Street, north to 7th Avenue, west to Penland Parkway, west to Airport Heights Drive, north to Mountain View Drive, east to Porcupine Drive, west to Rampart Drive, east to Commercial Drive, west to Meyer Street, north to point of beginning. The house district has a population of 15,837 and a variance of 1.04%. The house district will elect one house member and, with House District 19, one senator.

House District 21-Senate District K: Baxter Bog. House District 21 is bounded by a line beginning at the intersection of Penn Circle and Craig Drive, east to the end of Craig Drive, south along a nonvisible line to the end of Chester Creek Mid Branch, east along the MOA Parks and Rec boundary to an access Road, east to Beaver Place, south to Baxter Road, south to Colgate Drive, east to the end of Colgate Drive, continuing east along a nonvisible extension to Chester Creek South Branch, east to Paxson Drive, south to 21st Avenue, east to Chandalar Drive, south to Lake George Drive, south to Augustine Drive, south to Northern Lights Boulevard, east to Muldoon Road, continuing east along a Power Line ROW to Fort Richardson Firing Range, south along the range boundary to the northeast corner of Far North Bicentennial Park, west along the park boundary to the end of Tudor Road, west to Boniface Parkway, north to College Drive, east to Pembroke Street, north to Penn Circle, east and north to point of beginning. The house district has a population of 15,850 and a variance of 1.13%. The house district will elect one house member and, with House District 22, one senator.

House District 22-Senate District K: University/ Airport Heights. House District 22 is bounded by a line beginning at the intersection of Airport Heights Drive and Penland Parkway, east along the parkway to 7th Avenue, east to Hoyt Street, south to San Roberto Avenue, east to Pine Street, south to Debarr Road, east to Boniface Parkway, south to 20th Avenue, east to Penn Circle, south and west to Pembroke Street, south to College Drive, west to Boniface Parkway, south to Tudor Road, west to Dale Street, north to 43rd Avenue, west to the intersection of Piper Street and the southern boundary of the Alaska Psychiatric Institute (API), west along the API boundary to Lake Otis Parkway, north to 20th Avenue, east to Toklat Street, north to 17th Avenue, east to Logan Street, north to 16th Avenue, east to Alder Drive, north to 15th Avenue, east to Airport Heights Drive, north to point of beginning. The house district has a population of 15,831 and a variance of 1.01%. The house district will elect one house member and, with House District 21, one senator.

House District 23-Senate District L: Downtown/Rogers Park. House District 23 is bounded by a line beginning at a point on the Municipality of Anchorage boundary in Knik Arm west of the Port of Anchorage, east to the Terminal Lease Lot (North Star) Access Road, east to Ocean Dock Road, north to Bluff Drive, east to Loop Road, west to Port Access Loop Road, south to Alaska Railroad, east along the railroad to Elmendorf Air Force Base, south and east along the base boundary to the end of Thompson Avenue, south to and along Meyer Street to Commercial Drive, east to Rampart Drive, south to Porcupine Drive, south to Mountain View Drive, west to Airport Heights Drive, south to 15th Avenue, west to Alder Drive, south to 16th Avenue, west to Logan Street, south to 17th Avenue, west to Toklat Street, south to 20th Avenue, west to Lake Otis Road, south to Northern Lights Boulevard, west to C Street. North to Fireweed Lane, west to D Street, north to 22nd Avenue, east to C Street, north to 15th Avenue, west to E Street, north to 13th Avenue, west to L Street, north to 11th Avenue, west to P Street, north to 9th Avenue, west to the end of 9th Avenue, continuing west to the shore of Knik Arm, northwest through Knik Arm to the Municipality of Anchorage, north along the municipality boundary to point of beginning. The house district has a population of 15,847 and a variance of 1.11%. The house district will elect one house member and, with House District 24, one senator.

House District 24-Senate District L: Midtown/Taku. House District 24 is bounded by a line beginning at the intersection of C Street and Northern Lights Boulevard, east to Lake Otis Road, south to Lake Otis Parkway, south to the southern boundary of the Alaska Psychiatric Institute, east along the API boundary to Piper Street, south to 43rd Avenue, east to Dale Street, south to Tudor Road, east to Bragaw Street, south to the end of Bragaw Street, continuing south along a Power Line ROW through Far North Bicentennial Park to its southern boundary, west along the park boundary to the end of Dowling Road, west along Dowling Road to Laurel Street, south to its intersection with 64th Avenue, west along a nonvisible line to Lake Otis Parkway, south to 68th Avenue, west to Brayton Drive, south to its intersection with Lore Road, west along a nonvisible line to the intersection of Homer Drive and 76th Avenue, west to Nathan Drive, north to Nathan Circle, west to intersect a stream running south out of Campbell Creek, north along the stream to Campbell Creek, west to the Alaska Railroad, north to 68th Avenue, west to C Street, north to point of beginning. The house district has a population of 15,812 and a variance of 0.88%. The house district will elect one house member and, with House District 23, one senator.

House District 25-Senate District M: East Spenard. House District 25 is bounded by a line beginning at the intersection of L Street and 13th Avenue, east to E Street, south to 15th Avenue, east to C Street, south to 22nd Avenue, west to D Street, south to Fireweed Lane, east to C Street, south to Raspberry Road, west to Arlene Street, south to 69th Court, west to Smaldon Street, north to Raspberry Street, west to Blackberry Street, north to Jewel Lake Road, north to International Airport Road, east to Northwood Drive, north to Spenard Road, east to the Alaska Railroad, north to 36th Avenue, east to Lois Drive, north to 33rd Avenue, east to Minnesota Drive, north to Spenard Thru-Way, north and east to L Street, north to point of beginning. The house district has a population of 15,836 and a variance of 1.04%. The house district will elect one house member and, with House District 26, one senator.

House District 26-Senate District M: Turnagain/Inlet View. House District 26 is bounded by a line beginning at the intersection of Postmark Drive and Point Woronzof Road, east to Earthquake Park, north along the park boundary to the shore of Knik Arm, north through Knik Arm to the Municipality of Anchorage, east along the municipality boundary to a point north of where a nonvisible extension of 9th Avenue would intersect the shore of Knik Arm, southerly through Knik Arm to the shore and easterly along the extension to 9th Avenue, east to P Street, south to 11th Avenue, east to L Street, south to the Spenard Thru-Way, south to and along Minnesota Drive to 33rd Avenue, west to Lois Drive, south to 36th Avenue, west to the Alaska Railroad, south to Spenard Road, west to Northwood Drive, south to International Airport Road, west to Postmark Drive, north to point of beginning. The house district has a population of 15,823 and a variance of 0.96%. The house district will elect one house member and, with House District 25, one senator.

House District 27-Senate District N: Sand Lake. House District 27 is bounded by a line beginning at the intersection of Point Woronzof Road and Postmark Drive, south on Postmark Drive to International Airport Road, east to Jewel Lake Road, south to Blackberry Street, south to Raspberry Road, east to Smaldon Street, south to 69th Court, east to Arlene Street, north to Raspberry Road, east to Cheryl Street, south to 70th Avenue, west to Chad Street, south to 76th Avenue, west to Minnesota Drive, south to Dimond Boulevard, west to Vernye Place, north to 90th Avenue, west to Campbell Creek, south to Northwood Street, north to Tasha Drive, west to Flamingo Drive, south to 88th Avenue, west to Lakehurst Drive, south to 89th Court, west to Jewel Terrace Street, north to 88th Avenue, west to Gloralee Street, south to Jewel Lake Park, west to Jewel Lake, north around the lake shore to a point due east of the end of Emerald Circle, west to and along Emerald Circle to Emerald Street, north to 88th Avenue, west to Jade Street, south to Dimond Boulevard, west to Endicott Street, continuing due west along a nonvisible line to Kincaid Park, south along the park boundary to the shore of Turnagain Arm, south through Turnagain Arm to the Municipality of Anchorage, following the municipality boundary west and northeasterly (including Fire Island) to a point due north of Earthquake Park, south through Knik Arm to and along the park’s western boundary to Point Woronzof Road, west to point of beginning. The house district has a population of 15,820 and a variance of 0.94%. The house district will elect one house member and, with House District 28, one senator.

House District 28-Senate District N: Bayshore/Klatt. House District 28 is bounded by a line beginning at the intersection of Kincaid Park and the shore of Turnagain Arm, north to a nonvisible line extending due west from the intersection of Endicott Street and Dimond Boulevard, east along the line to Dimond Boulevard, east to Jade Street, north to 88th Avenue, east to Emerald Street, south to Emerald Circle, east to Jewel Lake, north around the lake shore to its intersection with the southern boundary of Jewel Lake Park, east to Gloralee Street, north to 88th Avenue, east to Jewel Terrace Street, south to 89th Court, east to 88th Avenue, east to Flamingo Drive, north to Tasha Drive, east to Northwood Street, south to Campbell Creek, east to 90th Avenue, east to Vernye Place, south to Dimond Boulevard, east to Minnesota Drive, south to O’Malley Road, east to Johns Road, south to Mariner Drive, east to Furrow Creek, east to Alaska Railroad, south to Cross Road, east to Oceanview Drive, south and east to Old Seward Highway, south to De Armoun Road, east to New Seward Highway, south to Little Rabbit Creek, west to the mouth of Little Rabbit Creek, south through Turnagain Arm to the Municipality of Anchorage, northwest along the municipality boundary to a point due south of Kincaid Park, north to point of beginning. The house district has a population of 15,839 and a variance of 1.06%. The house district will elect one house member and, with House District 27, one senator.

House District 29-Senate District O: Campbell/ Independence Park. House District 29 is bounded by a line beginning at the intersection of Cheryl Street and Raspberry Road, east along Raspberry Road to the Alaska Railroad, south to Campbell Creek, east to a small intersecting stream, south to Nathan Circle, east to Nathan Drive, south to 76th Avenue, east to Brayton Drive, south to Abbot Road, east to E Dimond Circle, east to Dimond Boulevard, east to its intersection with Little Campbell Creek, east to Lake Otis Parkway, south to 88th Avenue, west to Golovin Street, south to Abbott Road, east to Lake Otis Parkway, south to O’Malley Road, west to Minnesota Drive, north to a point due east of a nonvisible extension of 76th Avenue, east to and along 76th Avenue to Chad Street, north to 70th Avenue, east to Cheryl Street, north to point of beginning. The house district has a population of 15,846 and a variance of 1.10%. The house district will elect one house member and, with House District 30, one senator.

House District 30-Senate District O: Lore/Abbott. House District 30 is bounded by a line beginning at the intersection of Bragaw Street and Tudor Road, east along Tudor Road to its intersection with Muldoon Road, east to Far North Bicentennial Park, east, south and west along the park boundary to Lodge Pole Court, west to Nettleton Drive, south to Hillside Drive, south to O’Malley Road, west to Main Tree Drive, north to Lone Tree Drive, west to W Tree Drive, west to Birch Road, north to 104th Avenue, west to Our Road, south to Little Campbell Creek, west to a point on the creek due south of Hanley Circle, north to and along Hanley Circle to 101st Avenue, west to Abbott Loop Road, south to O’Malley Road, west to Lake Otis Parkway, north to Abbott Road, west to Golovin Street, north to 88th Avenue, east to Lake Otis Parkway, north to Little Campbell Creek, west to E Dimond Boulevard, west to E Dimond Circle, west to Abbott Road, west to Brayton Drive, north to 68th Avenue, east to Lake Otis Parkway, north to a point due west of the intersection of Laurel Street and 64th Avenue, east along a nonvisible line to said intersection, north on Laurel Street to Dowling Road, east to the end of Dowling Road east on a Power Line ROW to a perpendicular Power Line ROW (extending south from the end of Bragaw Street), north along the ROW to Bragaw Street, north to point of beginning. The house district has a population of 15,839 and a variance of 1.06%. The house district will elect one house member and, with House District 29, one senator.

House District 31-Senate District P: Huffman/Ocean View. House District 31 is bounded by a line beginning at the intersection of Johns Road and O’Malley Road, east along O’Malley Road to Abbott Loop Road, north to 101st Avenue, east to Hanley Circle, south to Little Campbell Creek, east to Our Road, north to 104th Avenue, east to Birch Road, south to Tree Drive, east to Lone Tree Drive, east to Main Tree Drive, south to O’Malley Road, east to Hillside Drive, south to Rabbit Creek Road, east to Old Rabbit Creek Road, south to Rabbit Creek, west along the creek to 140th Avenue, west to De Armoun Road, west to Old Seward Highway, north to Oceanview Drive, west and north to Cross Road, west to Alaska Railroad, north to Furrow Creek, west to Mariner Drive, west to Johns Road, north to point of beginning. The house district has a population of 15,811 and a variance of 0.88%. The house district will elect one house member and, with House District 32, one senator.

House District 32-Senate District P: Chugach State Park. House District 32 is bounded by a line beginning at the intersection of the eastern boundary of Centennial Park and the Glenn Highway, east along the highway to Fort Richardson Military Reservation, north along the reservation boundary to Eagle River, east along its northern bank to Eagle Loop Road, north to Driftwood Bay Drive, east to Highland Ridge Drive, east to its end, north along a nonvisible line to Eagle River Lane, north to Steeple Drive, north to Chugach State Park, north along the park boundary to Meadow Creek, east to its headwaters, east along a nonvisible line to Peters Creek, south to its headwaters, southeast to Peril Peak, continuing southeasterly along a natural ridge line running along Whiteout Glacier, south to Eagle Glacier to its intersection with Chugach National Forest, east along the forest boundary to the Municipality of Anchorage, south along the municipality boundary to the City of Whittier, east along the city boundary to the south shore of Passage Canal, east around Strong Point, westerly along the northern shore of Blackstone Bay to Kenai Peninsula Borough, westerly along the borough boundary to the Alaska Railroad, south to Johnson Pass Trail, north to Lynx Creek Road, west to Lynx Creek, south along a nonvisible line to Juneau Creek, west to Fresno Creek, west to Seward Highway, north to Pin Pass Creek, west to Resurrection Creek, north to Gold Gulch, west to the common boundary of Chugach National Forest and Kenai National Wildlife Refuge, north along the common boundary to the south shore of Turnagain Arm, northerly to the common boundary of Kenai Peninsula Borough and the Municipality of Anchorage, northwesterly to a point on the common boundary just south of the mouth of Little Rabbit Creek, north to the creek, east to New Seward Highway, north to De Armoun Road, east to 140th Avenue, east to Rabbit Creek, east to Rabbit Creek Road, north to Hillside Drive, north to Lodge Pole Court, east to Far North Bicentennial Park, north along the park boundary to Fort Richardson Firing Range, north along the range boundary to Centennial Park, north to point of beginning. The house district has a population of 15,329 and a variance of -2.20%. The house district will elect one house member and, with House District 31, one senator.

House District 33-Senate District Q: Kenai/Soldotna. House District 33 is bounded by a line beginning at the northeasternmost corner of Kenai City, easterly and southerly along the city boundary to Kenai Spur Highway, south to Sports Lake Road, east to Moser Road, south to the end of Moser Road, continuing south along a nonvisible line to the Alaska Natural Gas Pipeline ROW, westerly along the ROW to Delta Avenue, west to Gibson Boulevard, south to Kilowatt Avenue, west to Kenai Spur Highway, south to Soldotna City, easterly, southerly, and westerly along the city boundary to the Kenai National Wildlife Refuge, westerly along the refuge boundary to Soldotna City, easterly along the city boundary to Gas Well Road, east to Echo Lake Road, south to Evelyn Lane, east to the lane’s end, continuing east along a nonvisible line to Slikok Creek, south to Sterling Highway, south to Coal Creek, west to Kalifornsky Beach Road, north to Kasilof Beach Stub, west to the eastern shore of Cook Inlet, northerly along the shore to Kenai City, north along the city boundary to point of beginning. The house district has a population of 16,466 and a variance of 5.06%. The house district will elect one house member and, with House District 34, one senator.

House District 34-Senate District Q: Rural Kenai. House District 34 contains all uplands within the area of the Kenai Peninsula Borough bounded by a line beginning at the northwesternmost point of Kenai City, proceeding west to the centerline of Cook Inlet, northeasterly along centerline to the Kenai Peninsula Borough, easterly along the borough boundary to a point due north of the common boundary of Kenai National Wildlife Refuge Area and Chugach National Forest, south through Turnagain Arm to the common boundary, south along the common boundary to Gold Gulch, east to Resurrection Creek, south to Juneau Creek, south to Slaughter Creek, north to Trout Lake, following its northern shore to Thurman Creek, northwest to common boundary of Kenai National Wilderness Area and Chugach National Forest, south along the common boundary to the Kenai Fjords National Park, south and west along the park boundary to a point where the Kenai National Wilderness Area boundary diverges north, north and west along the wilderness boundary to Cytex Creek, west to Deep Creek, southerly along a series of tributaries and feeder creeks to Anchor River, west to the Anchor River Feeder Creek, west along a nonvisible line to North Fork River, west to North Fork Tributary, west to its end, continuing west along a nonvisible line to Kutayfa Avenue, west to Sterling Highway, north to Whiskey Gulch Spur Road, west to the eastern shore of Cook Inlet, north along the shore to Kenai City, north along the city boundary to point of beginning. The house district has a population of 16,409 and a variance of 4.69%. The house district will elect one house member and, with House District 33, one senator.

House District 35-Senate District R: Homer/Seward. House District 35 includes all uplands and islands in the area bounded by a line beginning at the intersection of Tlikakila River and Kenai Peninsula Borough, east along the river to Summit Lake, east along the lake’s south shore to its easternmost point, east along a nonvisible line to Lake Clark National Park & Wilderness Area, south along the park and wilderness boundary to Drift River, east to the shore of Cook Inlet, east across the inlet to the northwesternmost point of Kenai City, southerly along the city boundary to the shore of Cook Inlet, south along the shore to Whiskey Gulch Spur Road, east to Sterling Highway, south to Kutayfa Avenue, east to its end, continuing east along a nonvisible line to the end of North Fork Tributary, south to North Fork River, east along the river to its headwaters, south to and along a feeder creek to Anchor River, east to a feeder creek just west of its headwaters, northeasterly along Anchor River Feeder Creek to its natural end, east along a nonvisible line to Swift Creek, north to its natural end, north along a nonvisible line to Deep Creek Tributary, north to Deep Creek, northwesterly along Deep Creek to Cytex Creek, east to Kenai National Wilderness Area, east and south along the wilderness boundary to Kenai Fjords National Park, easterly along the park boundary to Chugach National Forest, north along the forest boundary to Thurman Creek, south to Slaughter Creek, south to Juneau Creek, north to Resurrection Creek, northeasterly to Pin Pass Creek, east to the Seward Highway, south to Fresno Creek, east to Juneau Creek at Canyon Creek, east along Juneau Creek to its headwaters, northeasterly along a nonvisible line to the headwaters of Lynx Creek, north to Lynx Creek Road, north to Johnson Pass Trail, south to the Alaska Railroad, north to Kenai Peninsula Borough, east, south and north along the borough boundary to point of beginning. The house district has a population of 16,436 and a variance of 4.87%. The house district will elect one house member and, with House District 36, one senator.

House District 36-Senate District R: Kodiak. House District 36 includes all uplands and islands in the area bounded by a line beginning at the northwesternmost corner of Lake and Peninsula Borough, east and south along the borough boundary to the Kodiak Island Borough, including all of the Kodiak Island Borough, continuing westerly along Katmai National Park boundary to the Lake and Peninsula Borough, northerly along the borough boundary to point of beginning. The house district has a population of 14,928 and a variance of -4.76%. The house district will elect one house member and, with House District 35, one senator.

House District 37-Senate District S: Bristol Bay/ Aleutians. House District 37 includes all uplands and islands in the area bounded by a line beginning at the northwesternmost corner of the Bristol Bay ANRC, east along the ANRC boundary to Lake and Peninsula Borough, south along the borough boundary to Bristol Bay Borough, east and south around the borough boundary to Katmai National Park, south along the park boundary to Lake and Peninsula Borough, west along the borough boundary to Aleutians East Borough, including all of the Aleutians East Borough, all of the islands of the Aleutian Chain, and the Pribilof Islands, easterly to the common boundary of the Calista and Bristol Bay ANRCs at Hagemeister Strait, north to point of beginning. The house district has a population of 15,150 and a variance of -3.34%. The house district will elect one house member and, with House District 38, one senator.

House District 38-Senate District S: Bethel. House District 38 includes all uplands and islands in the area bounded by a line beginning at the easternmost point of the common boundary of Wade Hampton and Bethel Census Areas at Hazen Bay, east along the common boundary to the Yukon Kuskokwim Portage Trail, south to Upper Kalskag City, northerly around the city boundary to Lower Kalskag City, southerly around the city boundary to the Kuskokwim River, southwesterly along its north bank to the common boundary of Lower Yukon and Kuspuk REAAs, southeasterly along the common REAA boundary to the common Calista and Bristol Bay ANRC boundary, southwesterly along the common ANRC boundary to Hagemeister Strait, northwesterly offshore to include Nunivak Island and St. Mathew Island, southeasterly back to point of beginning. The house district has a population of 14,921 and a variance of -4.80%. The house district will elect one house member and, with House District 37, one senator.

House District 39-Senate District T: Bering Straits. House District 39 includes all uplands and islands in the area bounded by a line beginning at the westernmost point of the Bering Land Bridge National Preserve, east and north along the preserve’s southern boundary to a nonvisible line, east to the Northwest Arctic Borough, east along the borough boundary to the Bering Straits and Yukon Koyukuk REAAs, south along the common REAA boundary to the Bering Straits and Iditarod REAAs, southerly along the common REAA boundary to the Bering Straits and Lower Yukon REAAs, east along the common REAA boundary to a point just north of the Atchuelinguk River, south along a nonvisible line to the headwaters of the Atchuelinguk River, southwesterly along the Atchuelinguk River to Pilot Station City, southerly around the city boundary to the Yukon River, south across the river to Hills Slough, south to Kashunuk Slough, west to Kashunuk River, southwesterly along Kashunuk River approximately 15 miles to a point opposite the Pikmik River, southwesterly along a nonvisible line to the Pikmik River, south to its head waters, south along a nonvisible line to the common boundary of the Wade Hampton and Bethel Census Areas, westerly along the common boundaries to Hazen Bay, northwesterly offshore to include St. Lawrence Island, northeasterly to include Little Diomede Island, easterly back to point of beginning. The house district has a population of 14,996 and a variance of -4.32%. The house district will elect one house member and, with House District 40, one senator.

House District 40-Senate District T: Arctic. House District 40 includes the North Slope Borough, the Northwest Arctic Borough, and an area of land due west of the Northwest Arctic Borough enclosed by the Bering Land Bridge National Preserve as its southern boundary, west along the preserve boundary to the shore of Bering Strait, west through the strait to the nautical 3-mile limit, north along the limit back to the Northwest Arctic Borough to close. The house district has a population of 15,155 and a variance of -3.31%. The house district will elect one house member and, with House District 39, one senator.

Article XV Schedule of Transitional Measures

To provide an orderly transition from a territorial to a state form of government, it is declared and ordained:

Section 1. Continuance of Laws.

All laws in force in the Territory of Alaska on the effective date of this constitution and consistent therewith shall continue in force until they expire by their own limitation, are amended, or repealed.

Notes to Decisions

Separate status of transitional measures. —

The enacting clause of this article, which reads, “Resolved, that the following be agreed upon as part of the schedule appended to the Alaska State Constitution,” shows the understanding of the convention that transitional measures, in being adopted as “part of the schedule appended to” the constitution, rather than “as part of ” the constitution, were considered to have a separate status from the other articles. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

No intent to operate retrospectively shown. —

This section does not show by the language used, either directly or by necessary implication, that it was intended to operate retrospectively so as to validate SLA 1955, ch. 39. Matthews v. Quinton, 362 P.2d 932 (Alaska 1961), cert. denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed. 2d 522 (U.S. 1962).

Statute requiring seizure and destruction of gambling implements. —

The provision of a former statute requiring the seizure and destruction of all gambling implements was one of the “laws in force in the Territory of Alaska on the effective date of this constitution” and there is no inconsistency between that law and the Alaska Constitution. Pin-Ball Mach. v. State, 371 P.2d 805 (Alaska 1962).

Law authorizing regulation of intrastate air commerce by Civil Aeronautics Board. —

See Interior Airways, Inc. v. Wien Alaska Airlines, Inc., 188 F. Supp. 107 (D. Alaska 1960).

Applied in

Pete v. State, 379 P.2d 625 (Alaska 1963); Turkington v. City of Kachemak, 380 P.2d 593 (Alaska 1963).

Quoted in

United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959).

Section 2. Saving of Existing Rights and Liabilities.

Except as otherwise provided in this constitution, all rights, titles, actions, suits, contracts, and liabilities and all civil, criminal, or administrative proceedings shall continue unaffected by the change from territorial to state government, and the State shall be the legal successor to the Territory in these matters.

Notes to Decisions

Quoted in

United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959).

Collateral references. —

Constitutionality of voter participation provisions for primary elections. 120 ALR5th 125.

Section 3. Local Government.

Cities, school districts, health districts, public utility districts, and other local subdivisions of government existing on the effective date of this constitution shall continue to exercise their powers and functions under existing law, pending enactment of legislation to carry out the provisions of this constitution. New local subdivisions of government shall be created only in accordance with this constitution.

Notes to Decisions

Quoted in

United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959); Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Section 4. Continuance of Office.

All officers of the Territory, or under its laws, on the effective date of this constitution shall continue to perform the duties of their offices in a manner consistent with this constitution until they are superseded by officers of the State.

Notes to Decisions

Quoted in

United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959).

Cited in

Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Section 5. Corresponding Qualifications.

Residence, citizenship, or other qualifications under the Territory may be used toward the fulfillment of corresponding qualifications required by this constitution.

Notes to Decisions

Quoted in

United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959).

Section 6. Governor to Proclaim Election.

When the people of the Territory ratify this constitution and it is approved by the duly constituted authority of the United States, the governor of the Territory shall, within thirty days after receipt of the official notification of such approval, issue a proclamation and take necessary measures to hold primary and general elections for all state elective offices provided for by this constitution.

Section 7. First State Elections.

The primary election shall take place not less than forty nor more than ninety days after the proclamation by the governor of the Territory. The general election shall take place not less than ninety days after the primary election. The elections shall be governed by this constitution and by applicable territorial laws.

Section 8. United States Senators and Representative.

The officers to be elected at the first general election shall include two senators and one representative to serve in the Congress of the United States, unless senators and a representative have been previously elected and seated. One senator shall be elected for the long term and one senator for the short term, each term to expire on the third day of January in an odd-numbered year to be determined by authority of the United States. The term of the representative shall expire on the third day of January in the odd-numbered year immediately following his assuming office. If the first representative is elected in an even-numbered year to take office in that year, a representative shall be elected at the same time to fill the full term commencing on the third day of January of the following year, and the same person may be elected for both terms.

Section 9. Terms of First Governor and Lieutenant Governor.

The First Governor and Lieutenant Governor shall hold office for a term beginning with the day on which they assume office and ending at noon on the first Monday in December of the even-numbered year following the next presidential election. This term shall count as a full term for purposes of determining eligibility for re-election only if it is four years or more in duration.

Effect of amendments. —

The amendment, effective October 10, 1970, (6th Legislature’s SJR 2(1970)), substituted “lieutenant governor” for “secretary of state” in the first sentence.

Section 10. Election of First Senators.

At the first state general election, one senator shall be chosen for a two-year term from each of the following senate districts, described in Section 2 of Article XIV: A, B, D, E, G, I, J, L, N, and O. At the same election, one senator shall be chosen for a four-year term from each of the following senate districts described in Section 2 of Article XIV: A, C, E, F, H, J, K, M, N, and P.

Section 11. Terms of First State Legislators.

The first state legislators shall hold office for a term beginning with the day on which they assume office and ending at noon on the fourth Monday in January after the next general election, except that senators elected for four-year terms shall serve an additional two years thereafter. If the first general election is held in an even-numbered year, it shall be deemed to be the general election for that year.

Section 12. Election Returns.

The returns of the first general election shall be made, canvassed, and certified in the manner prescribed by law. The governor of the Territory shall certify the results to the President of the United States.

Section 13. Assumption of Office.

When the President of the United States issues a proclamation announcing the results of the election, and the State has been admitted into the Union, the officers elected and qualified shall assume office.

Section 14. First Session of Legislature.

The governor shall call a special session of the first state legislature within thirty days after the presidential proclamation unless a regular session of the legislature falls within that period. The special session shall not be limited as to duration.

Section 15. First Legislators: Office Holding.

The provisions of Section 5 of Article II shall not prohibit any member of the first state legislature from holding any office or position created during his first term.

Section 16. First Judicial Council.

The first members of the judicial council shall, notwithstanding Section 8 of Article IV, be appointed for terms as follows: three attorney members for one, three, and five years respectively, and three non-attorney members for two, four, and six years respectively. The six members so appointed shall, in accordance with Section 5 of Article IV, submit to the governor nominations to fill the initial vacancies on the superior court and the supreme court, including the office of chief justice. After the initial vacancies on the superior and supreme courts are filled, the chief justice shall assume his seat on the judicial council.

Section 17. Transfer of Court Jurisdiction.

Until the courts provided for in Article IV are organized, the courts, their jurisdiction, and the judicial system shall remain as constituted on the date of admission unless otherwise provided by law. When the state courts are organized, new actions shall be commenced and filed therein, and all causes, other than those under the jurisdiction of the United States, pending in the courts existing on the date of admission, shall be transferred to the proper state court as though commenced, filed, or lodged in those courts in the first instance, except as otherwise provided by law.

Notes to Decisions

Expression of desire to use existing federal court facilities. —

In providing in this section that the interim courts “shall remain as constituted on the date of admission” a desire was expressed by Alaska to make use of the existing federal court facilities. Hobbs v. State, 359 P.2d 956 (Alaska), cert. denied, 367 U.S. 909, 81 S. Ct. 1923, 6 L. Ed. 2d 1250 (U.S. 1961).

And acceptance of established judicial system of territory. —

In this section, the State of Alaska accepted the then established judicial system of the Territory of Alaska, including the appellate court, the United States court of appeals for the ninth circuit, for the transitional period while the state court system was being established. Section 18 of the Alaska Statehood Bill was Congress’s acceptance. United States v. Marrone, 172 F. Supp. 368 (D. Alaska 1959).

Federal district court was interim court of general jurisdiction. —

The United States district court for the district (Territory) of Alaska was the interim court of general jurisdiction contemplated by this section and was available and clothed with jurisdiction of state matters on the effective date of the Statehood Act. Such state jurisdiction was confirmed and defined by the first state legislature immediately thereafter. Hobbs v. State, 359 P.2d 956 (Alaska), cert. denied, 367 U.S. 909, 81 S. Ct. 1923, 6 L. Ed. 2d 1250 (U.S. 1961).

And had continuing federal jurisdiction during transitional period. —

The district court for the district of Alaska had continuing federal jurisdiction during the transitional period when Alaska advanced from territorial to full state status, and until the President, by executive order, proclaimed that the United States district court for the district of Alaska was prepared to assume the functions imposed upon it. United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959).

Court rules in effect when Alaska became state included in judicial system. —

The judicial system, in order to be effective, had to include the court rules which were in effect when Alaska became a state. City of Valdez v. Valdez Dev. Co., 506 P.2d 1279 (Alaska 1973).

Cited in

United States v. Egelak, 173 F. Supp. 206 (D. Alaska 1959); Metlakatla Indian Community v. Egan, 363 U.S. 555, 80 S. Ct. 1321, 4 L. Ed. 2d 1397 (U.S. 1960); Oxenberg v. State, 362 P.2d 893 (Alaska 1961).

Section 18. Territorial Assets and Liabilities.

The debts and liabilities of the Territory of Alaska shall be assumed and paid by the State, and debts owed to the Territory shall be collected by the State. Assets and records of the Territory shall become the property of the State.

Section 19. First Reapportionment.

The first reapportionment of the house of representatives shall be made immediately following the official reporting of the 1960 decennial census, or after the first regular legislative session if the session occurs thereafter, notwithstanding the provision as to time contained in Section 3 of Article VI. All other provisions of Article VI shall apply in the first reapportionment.

Section 20. State Capital.

The capital of the State of Alaska shall be at Juneau.

Notes to Decisions

Basis for designation of Juneau as seat of government. —

Prior to the time that the new state legislature could meet and act, it was a reasonable and orderly thing to provide a place for it to convene — a seat of government where the newly created legislative branch could deliberate and act, and where the executive department of the state could carry out its functions. It was a matter of convenience to designate that place as Juneau, since it had been the capital and seat of government of the territory since 1912. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

It made sense and had a real relationship to orderliness in the transitional period, for the convention delegates to provide a seat of government for the new state and to designate the place as Juneau. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

This section effected purpose of article. —

The express purpose of this article, as stated in the preamble, was “To provide an orderly transition from a territorial to a state form of government,” and this section reasonably effected that purpose. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

It has a status different from the other constitutional provisions, commencing with the declaration of rights in article I and concluding with requirements for amendment and revision in article XIII. Therefore, it is not governed by article XIII, and is subject to being changed by law. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

And is not part of organic law. —

This section, by reason of its place in the constitutional document and its specific and limited purpose as declared in this article, is not part of the organic law of this state. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

It is subject to change by law. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Because of its transitional nature. —

This section is subject to change by law because it is of a transitional nature. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

This section, because of its place in the constitution, the history of its adoption, and its express purpose as stated in the preamble to the article of which it is a part, was a provision not intended to be a permanent and abiding part of the fundamental law of this state which could be changed only by constitutional amendment. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

A transition is a passage or change from one status to another, and once the change has been made, then that which aided in bringing it about has performed its function, and there is no basis for assuming that a transitional measure, such as the provision for a seat of government, should then have any enduring or permanent quality which would make it an integral part of the fundamental structure of government established by the people of Alaska. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Enacted either by the legislature. —

See Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Or by the people through the initiative. —

See Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

And is not governed by provisions relating to constitutional amendments. —

The method of amending this section is not governed by provisions relating to constitutional amendments. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

The conclusion cannot be reached that because § 1 of this article, and others in the schedule of transitional measures do have express provisions for change by law, and this section does not, that the latter cannot be changed except by constitutional amendment. Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Discussion of debates of constitutional convention concerning this section. —

See Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

Section 21. Seal.

The seal of the Territory, substituting the word “State” for “Territory,” shall be the seal of the State.

Notes to Decisions

Limitation of right to use state sovereignty symbol not preempted by copyright law. —

Federal copyright law does not preempt AS 44.09.015 , limiting the commercial use of the state seal, because it is clear that states have the power to protect symbols of their sovereignty, state seals appear to be more akin to trademarks or service marks than they are to the type of work Congress intended copyrights to cover, and it is evident that Congress, by protecting specific important federal seals that were left unprotected by copyright law and by federal trademark law, does not intend to prohibit states from protecting seals that represent state sovereignty. Robart v. State, 82 P.3d 787 (Alaska Ct. App.), cert. denied, 543 U.S. 940, 125 S. Ct. 310, 160 L. Ed. 2d 249 (U.S. 2004).

Section 22. Flag.

The flag of the Territory shall be the flag of the State.

Section 23. Special Voting Provision.

Citizens who legally voted in the general election of November 4, 1924, and who meet the residence requirements for voting, shall be entitled to vote notwithstanding the provisions of Section 1 of Article V.

Section 24. Ordinances.

Ordinance No. 1 on ratification of the constitution, Ordinance No. 2 on the Alaska-Tennessee Plan, and Ordinance No. 3 on the abolition of fish traps, adopted by the Alaska Constitutional Convention and appended to this constitution, shall be submitted to the voters and if ratified shall become effective as provided in each ordinance.

Notes to Decisions

Cited in

United States v. Starling, 171 F. Supp. 47 (D. Alaska 1959).

Section 25. Effective Date.

This constitution shall take effect immediately upon the admission of Alaska into the Union as a state.

Notes to Decisions

Quoted in

Metlakatla Indian Community v. Egan, 363 U.S. 555, 80 S. Ct. 1321, 4 L. Ed. 2d 1397 (U.S. 1960).

Section 26. Appropriations for Relocation of the Capital.

If a majority of those voting on the question at the general election in 1982 approve the ballot proposition for the total cost to the State of providing for relocation of the capital, no additional voter approval of appropriations for that purpose within the cost approved by the voters is required under the 1982 amendment limiting increases in appropriations (art. IX, sec. 16).

Effective dates. —

This section took effect December 24, 1982 (12th Legislature’s FSS FCCSSJR 4 (1981).).

Editor’s notes. —

Ballot Measure 8, the question referred to in this section, was defeated by the voters; and, therefore, this section is not operative.

Section 27. Reconsideration of Amendment Limiting Increases in Appropriations.

If the 1982 amendment limiting appropriation increases (art. IX, sec. 16) is adopted, the lieutenant governor shall cause the ballot title and proposition for the amendment to be placed on the ballot again at the general election in 1986. If the majority of those voting on the proposition in 1986 rejects the amendment, it shall be repealed.

Effective dates. —

This section took effect December 24, 1982 (12th Legislature’s FSS FCCSSJR 4 (1981).).

Section 28. Application of Amendment.

The 1982 amendment limiting appropriation increases (art. IX, sec. 16) applies to appropriations made for fiscal year 1984 and thereafter.

Effective dates. —

This section took effect December 24, 1982 (12th Legislature’s FSS FCCSSJR 4 (1981).).

Section 29. Applicability of Amendments Providing for Redistricting of the Legislature.

The 1998 amendments relating to redistricting of the legislature (art. VI and art. XIV) apply only to plans for redistricting and proclamations of redistricting adopted on or after January 1, 2001.

Effective dates. —

This section took effect January 3, 1999 (20th Legislature’s SCS CSHJR 44(JUD)).

Section 99.

Agreed upon by the delegates in Constitutional Convention assembled at the University of Alaska, this fifth day of February, in the year of our Lord one thousand nine hundred and fifty-six, and of the Independence of the United States the one hundred and eightieth.

Wm. A. Egan President of the Convention

R. Rolland Armstrong Maynard D. Londborg Dorothy J. Awes Steve McCutcheon Frank Barr George M. McLaughlin John C. Boswell Robert J. McNealy Seaborn J. Buckalew, Jr. John A. McNees John B. Coghill M. R. Marston E. B. Collins Irwin L. Metcalf George D. Cooper Leslie Nerland John M. Cross James Nolan Edward V. Davis Katherine D. Nordale James P. Doogan Frank Peratrovich Truman C. Emberg Chris Poulsen Helen Fischer Peter L. Reader Victor Fischer Burke Riley Douglas Gray Ralph J. Rivers Thomas C. Harris Victor C. Rivers John S. Hellenthal John H. Rosswog Mildred R. Hermann B. D. Stewart Herb Hilscher W. O. Smith Jack Hinckel George Sundborg James Hurley Dora M. Sweeney Maurice T. Johnson Warren A. Taylor Yule F. Kilcher H. R. Vanderleest Leonard H. King M. J. Walsh William W. Knight Barrie M. White W. W. Laws Ada B. Wien Eldor R. Lee

Click to view

ATTEST: Thomas B. Stewart Secretary of the Convention

Editor’s notes. —

The new section proposed by 2010 Legislative Resolve 53 (SJR 21 am H) (number of house and senate districts) was rejected by voters.

Ordinance No. 1 Ratification of Constitution

Section 1. Election.

The Constitution for the State of Alaska agreed upon by the delegates to the Alaska Constitutional Convention on February 5, 1956, shall be submitted to the voters of Alaska for ratification or rejection at the territorial primary election to be held on April 24, 1956. The election shall be conducted according to existing laws regulating primary elections so far as applicable.

Section 2. Ballot.

Each elector who offers to vote upon this constitution shall be given a ballot by the election judges which will be separate from the ballot on which candidates in the primary election are listed. Each of the propositions offered by the Alaska Constitutional Convention shall be set forth separately, but on the same ballot form. The first proposition shall be as follows:

“Shall the Constitution for the State of Alaska prepared and agreed upon by the Alaska Constitu- Yes • tional Convention be adopted?” No •

Click to view

Section 3. Canvass.

The returns of this election shall be made to the governor of the Territory of Alaska, and shall be canvassed in substantially the manner provided by law for territorial elections.

Section 4. Acceptance and Approval.

If a majority of the votes cast on the proposition favor the constitution, then the constitution shall be deemed to be ratified by the people of Alaska to become effective as provided in the constitution.

Section 5. Submission of Constitution.

Upon ratification of the constitution, the governor of the Territory shall forthwith transmit a certified copy of the constitution to the President of the United States for submission to the Congress, together with a statement of the votes cast for and against ratification.

Ordinance No. 2 Alaska-Tennessee Plan

Section 1. Statement of Purpose.

The election of senators and a representative to serve in the Congress of the United States being necessary and proper to prepare for the admission of Alaska as a state of the Union, the following sections are hereby ordained, pursuant to Chapter 46, SLA 1955.

Section 2. Ballot.

Each elector who offers to vote upon the ratification of the constitution may, upon the same ballot, vote on a second proposition, which shall be as follows:

“Shall Ordinance Number Two (Alaska-Tennessee Plan) of the Alaska Constitutional Convention, call- Yes • ing for the immediate election of two United States No • Senators and one United States Representative, be adopted?”

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Section 3. Approval.

Upon ratification of the constitution by the people of Alaska and separate approval of this ordinance by a majority of all votes cast for and against it, the remainder of this ordinance shall become effective.

Section 4. Election of Senators and Representative.

Two United States senators and one United State representative shall be chosen at the 1956 general election.

Section 5. Terms.

One senator shall be chosen for the regular term expiring on January 3, 1963, and the other for an initial short term expiring on January 3, 1961, unless when they are seated the Senate prescribes other expiration dates. The representative shall be chosen for the regular term of two years expiring January 3, 1959.

Section 6. Qualifications.

Candidates for senators and representative shall have the qualifications prescribed in the Constitution of the United States and shall be qualified voters of Alaska.

Section 7. Other Office Holding.

Until the admission of Alaska as a state, the senators and representative may also hold or be nominated and elected to other offices of the United States or of the Territory of Alaska, provided that no person may receive compensation for more than one office.

Section 8. Election Procedure.

Except as provided herein, the laws of the Territory governing elections to the office of Delegate to Congress shall, to the extent applicable, govern the election of the senators and representative. Territorial and other officials shall perform their duties with reference to this election accordingly.

Section 9. Independent Candidates.

Persons not representing any political party may become independent candidates for the offices of senator or representative by filing applications in the manner provided in Section 38-5-10, ACLA 1949, insofar as applicable. Applications must be filed in the office of the director of finance of the Territory on or before June 30, 1956.

Section 10. Party Nominations.

Party nominations for senators and representative shall, for this election only, be made by party conventions in the manner prescribed in Section 38-4-11, ACLA 1949, for filling a vacancy in a party nomination occurring after a primary election. The names of the candidates nominated shall be certified by the chairman and secretary of the central committee of each political party to the director of finance of the Territory on or before June 30, 1956.

Section 11. Certification.

The director of finance shall certify the names of all candidates for senators and representatives to the clerks of court by July 15, 1956. The clerks of court shall cause the names to be printed on the official ballot for the general election. Independent candidates shall be identified as provided in Section 38-5-10, ACLA 1949. Candidates nominated at party conventions shall be identified with appropriate party designations as is provided by law for nominations at primary elections.

Section 12. Ballot Form; Who Elected.

The ballot form shall group separately the candidates seeking the regular senate term, those seeking the short senate term, and candidates for representative. The candidate for each office receiving the largest number of votes cast for that office shall be elected.

Section 13. Duties and Emoluments.

The duties and emoluments of the offices of senator and representative shall be as prescribed by law.

Section 14. Convention Assistance.

The president of the Alaska Constitutional Convention, or a person designated by him, may assist in carrying out the purposes of this ordinance. The unexpended and unobligated funds appropriated to the Alaska Constitutional Convention by Chapter 46, SLA 1955, may be used to defray expenses attributable to the referendum and the election required by this ordinance.

Section 15. Alternate Effective Dates.

If the Congress of the United States seats the senators and representative elected pursuant to this ordinance and approves the constitution before the first election of state officers, then Section 25 of Article XV shall be void and shall be replaced by the following:

“The provisions of the constitution applicable to the first election of state officers shall take effect immediately upon the admission of Alaska into the Union as a state. The remainder of the constitution shall take effect when the elected governor takes office.”

Ordinance No. 3 Abolition of Fish Traps

Section 1. Ballot.

Each elector who offers to vote upon the ratification of the constitution may, upon the same ballot, vote on a third proposition, which shall be as follows:

“Shall Ordinance Number Three of the Alaska Constitutional Convention, prohibiting the use of Yes • fish traps for the taking of salmon for commercial No • purposes in the coastal waters of the State, be adopted?”

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Section 2. Effect of Referendum.

If the constitution shall be adopted by the electors and if a majority of all the votes cast for and against this ordinance favor its adoption, then the following shall become operative upon the effective date of the constitution:

“As a matter of immediate public necessity, to relieve economic distress among individual fishermen and those dependent upon them for a livelihood, to conserve the rapidly dwindling supply of salmon in Alaska, to insure fair competition among those engaged in commercial fishing, and to make manifest the will of the people of Alaska, the use of fish traps for the taking of salmon for commercial purposes is hereby prohibited in all the coastal waters of the State.”

Notes to Decisions

Designation of public lands. —

In a challenge to federal officials’ designation of “public lands” for purposes of Alaska National Interest Lands Conservation Act’s (ANILCA) rural subsistence hunting and fishing priority, as there was no shortage of water on ANILCA reservations, any need for additional water beyond adjacent waters for general wilderness preservation was too remote to require including upstreams and downstreams as subject to reserved right; State of Alaska’s prohibition of fish traps was evidence of long-running federal-state controversy, but ANILCA limited priority to rural subsistence uses, to certain (but not all) public lands, and to federal lands, and lands owned by the United States but subject to valid State and Native corporation land selections were excluded from the definition of public lands, such that priority for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, applied only on specified subset of federal lands, with State, Native corporation, and private lands expressly excluded from rural subsistence preference regulations. John v. United States, 720 F.3d 1214 (9th Cir. Alaska 2013), cert. denied, 572 U.S. 1042, 134 S. Ct. 1759, 188 L. Ed. 2d 609 (U.S. 2014).

Quoted in

Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798 (Alaska 1992).