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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hertz v. Macomber (3/22/2013) sp-6764

Hertz v. Macomber (3/22/2013) sp-6764

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  


SIDNEY R. HERTZ,                                    ) 

                                                    )   Supreme Court No. S-14454 

                        Appellant,                  ) 

                                                    )   Superior Court No. 3AN-10-11374 CI 

        v.                                          ) 

                                                    )   O P I N I O N 

JOHN MACOMBER and                                   ) 

CLIFTON SIMONS,                                     )   No. 6764 - March 22, 2013 


                        Appellees.                  )


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Mark Rindner, Judge. 

                Appearances:        Sidney     Hertz,    pro   se,   Salem,    Oregon, 

                Appellant.     Marilyn J. Kamm, Assistant Attorney General, 

                and   Michael   C.   Geraghty,   Attorney   General,   Juneau,      for 


                Before:    Fabe, Chief Justice, Winfree and Stowers, Justices. 

                [Carpeneti, Justice, not participating.] 

                WINFREE, Justice. 


                A prisoner sentenced in 1984 applied for an early furlough release in 2009 

but   refused   to   agree   to   comply   with   any   furlough   release   conditions,   arguing   that 

imposing conditions that were not part of his sentence violated his due process rights and 

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constituted double jeopardy.        The State of Alaska, Department of Corrections (DOC) 

denied the early furlough release, but the prisoner was released on mandatory parole 

shortly thereafter. 

                The prisoner subsequently sued two DOC probation officers, alleging they 

lacked authority to impose furlough release conditions and that doing so violated his 

constitutional rights. The superior court dismissed the complaint. On appeal the prisoner 

challenges the superior court’s dismissal and attempts to collaterally attack conditions 

of   his   mandatory   parole.    Issues   regarding   the   prisoner’s   mandatory   parole   are   not 

properly before us and we will not consider them.  Because DOC probation officers are 

mandated by statute and administrative regulation to impose appropriate conditions on 

furlough releases without regard to conditions set in an original sentence, and because 

these mandates alone do not violate a prisoner’s rights under the Alaska or United States 

Constitutions, we affirm the superior court’s dismissal of this case. 


        A.      Factual Background 

                Sidney Hertz was convicted of second-degree murder in 1984.                  He was 

sentenced to a 40-year term with a 20-year restriction on parole eligibility, without any 

program or treatment conditions stated for release.          Hertz applied for an early furlough 

release in October 2009 but was denied because he “refused to sign any furlough release 

paperwork that forced [him] to take any type of [programming] or treatment.”                    Hertz 

believed   that   the   imposition   of   any   treatment   programs   or   community   service   as   a 

condition     of  furlough   release   would    amount    to  an  enhancement      of  his  sentence, 

constituting double jeopardy and violating his due process rights.             In June 2010 Hertz 

reiterated his refusal to agree to furlough conditions.   Hertz was released on mandatory 

parole in October 2010 with special parole conditions, including a requirement that he 

have substance abuse evaluations and treatment if recommended. 

                                                 -2-                                            6764

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                B.      Procedural History 

                Hertz filed a post-conviction relief (PCR) application with the superior 

court   in   October   2010,   asserting   that   the   current   laws   governing   mandatory   parole 

conditions are unconstitutional and ex post facto as applied to him.   Hertz argued that he 

should not be subject to mandatory parole supervision under AS 33.16.150 because the 

statute    was   passed   after  he   was   sentenced.     The    superior    court  denied    the  PCR 

application   in   May   2011,   concluding   that   Hertz   is   subject   to   the   mandatory   parole 

statutes and, citing James v. State ,1  that the relevant parole policies and procedures are 

constitutional and not ex post facto as applied to Hertz. 

                The day after he filed his PCR application, Hertz filed a separate complaint 

against probation officers John Macomber and Clifton Simons.                   This complaint — not 

the PCR application challenging the conditions of his mandatory parole — underlies this 

appeal. Hertz alleged that Macomber and Simons denied him due process under the state 

and federal constitutions by refusing to grant him early furlough release from prison 

because Hertz refused to agree to furlough conditions. Hertz also alleged that any forced 

treatment programs would constitute double jeopardy because the sentencing court did 

not include treatment programs in his sentence. Finally Hertz alleged that Macomber and 

Simons’s   actions   were   ex   post   facto   punishment.      Hertz   requested   declaratory   and 

injunctive relief, compensatory and punitive damages, and damages for emotional duress 

and mental anguish. 

                After the superior court denied   Hertz’s PCR   application   in   May   2011, 

Macomber and Simons filed a motion to dismiss the suit against them.                    They asserted 

that because the court had denied Hertz’s PCR application and found the conditions of 

mandatory parole release valid, they obviously had good grounds   to impose related 

        1       244 P.3d 542 (Alaska App. 2011). 

                                                   -3-                                               6764 

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conditions on Hertz’s furlough application.   The court granted Macomber and Simons’s 

motion to dismiss in June 2011.  The court concluded it did not need to evaluate whether 

specific furlough conditions were appropriate in Hertz’s case because “Hertz opposes the 

right of the [DOC], specifically Parole Officers Macomber and Simons, to impose any 


treatment programs as conditions of furlough.”  Citing State v. Felix,  the court held that 

DOC “possesses the general authority to impose conditions on a prisoner’s release on 

furlough.”  The court also referenced the court of appeals’ holding in James v. State that 

“the authority to impose and revoke parole is inherent in a criminal sentence.”3                     The 

court concluded, as a matter of law, that “Macomber and Simons have the authority to 

impose and/or implement such conditions in their capacity as officers of the [DOC].” 

                Hertz appeals, arguing that because James v. State involved parole, his case 

is   distinguishable   and   that   the   superior   court   erroneously   dismissed   his   suit   against 

Macomber and Simons.   Hertz also contends that DOC wrongfully imposed conditions 

on his mandatory parole release and in doing so facially violated his constitutional rights. 

Macomber and Simons respond that:               (1) Hertz cannot state a claim for relief against 

them regarding his mandatory parole unless he prevails in his PCR action and has his 

challenged parole conditions declared invalid; (2) Hertz lacks standing to challenge the 

conditions of release for a furlough because he “admits he ‘refused to sign the furlough 

paperwork’ ”; (3) it was legally proper for them to require Hertz to do treatment as a 

furlough condition; and (4) the court of appeals’ James v. State ruling regarding parole 

        2       50 P.3d 807, 815 (Alaska App. 2002) (holding “furloughs are within the 

authority   of   [DOC],   not   the   courts”   (quoting  State   v.   Couch,   991   P.2d   1286,   1289 

(Alaska App. 1999))). 

        3       244 P.3d at 546 (citing Hill v. State , 22 P.3d 24, 29 (Alaska App. 2001)). 

                                                   -4-                                                6764 

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conditions  applies with equal force to furlough release conditions. 


                We review de novo a trial court’s decision granting or denying a motion to 

dismiss.5   “Issues regarding the constitutionality of statutes are questions of law that we 

review de novo.”6 


        A.	     This Case Concerns Conditions On Furlough Release, Not Conditions 

                On Mandatory Parole. 

                Hertz alleged that his constitutional rights were violated by Macomber and 

Simons’s “refusing to give [Hertz] early release [furlough] from prison based on the fact 

that [he] refused to take any programs for furlough.”                However, the bulk of Hertz’s 

appeal     is  devoted   to  mounting     a  collateral   attack   on  conditions    imposed     on   his 

subsequent mandatory parole release. 

                In this context Hertz appears to conflate furlough and parole. But furlough 

and   parole   are   two   different   things. Furlough   is   granted   on   a   discretionary   basis;7 

        4       Id.    (holding    imposition     of   special   parole    conditions     pursuant     to 

AS 33.16.150, implemented in 1985, on mandatory parole for pre-1985 convictions does 

not violate ex post facto clause). 

        5        Varilek   v.   City   of   Houston,   104   P.3d   849,   851   (Alaska   2004)   (citing 

McElroy v. Kennedy , 74 P.3d 903, 906 (Alaska 2003); In re Life Ins. Co. of Alaska , 76 

P.3d 366, 368 (Alaska 2003)). 

        6       L.D.G., Inc. v. Brown , 211 P.3d 1110, 1118 (Alaska 2009) (citing State v. 

Alaska Civil Liberties Union , 978 P.2d 597, 603 (Alaska 1999)). 

        7       AS   33.30.101(b)   (“[T]he   commissioner  may  grant   a   furlough   .   .   .   .”) 

(emphasis added). 

                                                  -5-	                                            6764

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mandatory parole is not.8       “Furlough” is statutorily defined as “an authorized leave of 

absence from actual confinement for a designated purpose and period of time”9 and is 

governed      by  AS    33.30.101    and   22   Alaska    Administrative     Code    (AAC)      05.321. 

“Mandatory parole” is statutorily defined as “the release of a prisoner . . . for the period 

of good time credited under AS 33.20, subject to conditions imposed by the board and 

subject to its custody and jurisdiction”10 and is governed by AS 33.16.010(c) and 22 

AAC 20.265.  Issues regarding Hertz’s mandatory parole are not properly before us, but 

rather are properly before the court of appeals in Hertz’s PCR appeal.  We therefore will 

not consider Hertz’s arguments regarding his mandatory parole conditions. 

        B.      The Superior Court Did Not Err In Dismissing Hertz’s Complaint. 

                1.      Overview 

                In granting the motion to dismiss, the superior court determined that “Hertz 

opposes the right of the [DOC], specifically Parole Officers Macomber and Simons, to 

impose  any treatment programs as conditions   of   furlough.”             (Emphasis in original.) 

Hertz does not challenge this assessment. In other words, Hertz’s position was that DOC 

lacked any authority   to impose early furlough conditions that were not a part of his 

original sentence and that doing so facially violated his federal and state constitutional 

rights.   Hertz did not argue that even if DOC generally   has the authority to impose 

furlough     conditions    that  are  not  a  part  of  an  original   sentence,   DOC’s     proposed 

        8       AS 33.16.010(c) (“A prisoner . . . shall be released on mandatory parole 

. . . .”) (emphasis added). 

        9       AS     33.30.901(9);    see    also  22   AAC     05.660(c)(2)     (2011)    (defining 

“furlough”   as   an   “authorized   absence   of   a   prisoner   from   a   facility   for   a   designated 

purpose and period of time”). 

        10      AS 33.16.900(8). 

                                                  -6-                                            6764

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conditions in his particular case would have violated his constitutional rights.11             We also 

note that in light of Hertz’s release on mandatory parole a few months after his efforts 

for an early furlough release, Hertz’s equitable relief claims are moot.   Only his claims 

for damages under the United States and Alaska Constitutions remain.12 

                We first address whether DOC has authority under relevant statutes and 

regulations to impose furlough conditions that are not a part of an original sentence, and 

we conclude that it does. We next address Hertz’s claim that the statutory and regulatory 

framework violates his constitutional rights to be free from ex post facto laws and double 

jeopardy, and we conclude that it does not.  We then address Hertz’s federal due process 

claim,   and   conclude   that   he   has   no   federal   constitutional   liberty   interest   in   an   early 

furlough   that   would   be    protected   by   the   United   States   Constitution’s   due   process 

provisions.    We finally address Hertz’s state due process claim, and conclude that the 

statutory and regulatory framework does not facially violate his Alaska Constitutional 

due process rights. 

                2.	     Alaska       law   authorizes      DOC      to  impose      furlough     release 

                         conditions regardless of whether those conditions were part of 

                         an original sentence. 

                Hertz argues that DOC officials have no authority to impose conditions on 

his   furlough   application   because   no   release   conditions   were   ordered   when   Hertz’s 

sentence was imposed in 1984.            But the Alaska Legislature has committed decisions 

granting     prisoner   furloughs     and  crafting   appropriate     release   conditions    to  DOC’s 

        11      See generally State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 

372 (Alaska 2009) (discussing distinction between facial and as-applied challenge). 

        12      Hertz brings his federal constitutional claim under 42 U.S.C. § 1983 (2006) 

(authorizing civil actions for damages resulting from deprivation of federal constitutional 

rights).    We have yet to imply a private cause of action for damages under the Alaska 

Constitution.  See Adkins v. Stansel, 204 P.3d 1031, 1034 (Alaska 2009). 

                                                   -7-	                                            6764

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administrative discretion, not to Alaska’s sentencing courts.13           We see nothing in the 

relevant statutes suggesting furlough conditions must be a part of a prisoner’s original 

sentence, and are unaware of any authority supporting that argument. 

                DOC     has   exercised   this  delegated   authority   by   enacting   regulations 

comprehensively       governing     furloughs    based   on:  “(1)   a  prisoner’s   rehabilitative, 

treatment, and personal needs, (2) the prisoner’s level of dangerousness, and (3) the 

        13      See AS 33.30.101(a) (granting DOC Commissioner authority to “adopt 

regulations governing the granting of prerelease . . . furloughs to prisoners” for any of 

eight statutorily enumerated purposes, including to “secure a residence or make other 

preparation for release”); AS 33.30.111(c) (establishing specific guidelines for prerelease 

furloughs to minimize risk to public); see also Rust v. State, 582 P.2d 134, 137 (Alaska 

1978) (“Alaska’s statutory provisions leave little doubt that the legislature intended to 

place authority for administering matters affecting prisoners with the Commissioner of 


                The superior court relied on AS 33.30.101, the statute governing furloughs, 

as well as the court of appeals’ decision in State v. Felix, 50 P.3d 807, 815 (Alaska App. 

2002)   (holding   that   granting   or   denying   furlough   lies   within   DOC’s   discretionary 

authority), to reach its conclusion that DOC “possesses the general authority to impose 

conditions on a prisoner’s release on furlough.” In a “cf.” citation immediately following 

its conclusion, the superior court also noted the court of appeals’ statement in James v. 

State 244 P.3d 542, 546 (Alaska App. 2011) that “the authority to impose and revoke 

parole is inherent in a criminal sentence.”         Hertz contends that this citation shows the 

superior court dismissed his suit based on an analysis of the James case and asserts that 

the James facts are distinguishable from his own.           This is an incorrect reading of the 

superior court’s order:  “As a citation signal, cf. directs the reader’s attention to another 

authority . . . in which contrasting, analogous, or explanatory statements may be found.” 

BLACK ’S    LAW    DICTIONARY       260   (9th  ed.  2009).    Whether     the  court  cited James 

(involving mandatory parole) as supporting or contrasting Felix (involving furloughs) 

is unclear; but it is clear the superior court relied on Felix and AS 33.30.101, not on 

James , to conclude that DOC parole officers have the   authority to impose furlough 

release conditions. 

                                                 -8-                                          6764

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ability of [DOC] to adequately supervise the prisoner’s release.”14                    22 AAC 05.316 

authorizes prerelease or short-duration furloughs for certain purposes, after consideration 

of specified factors and meeting specified criteria.   22 AAC 05.321 authorizes granting 

early furlough release at DOC’s discretion, establishes eligibility conditions for early 

furlough release, and creates an avenue of appeal for denied furlough requests.                     These 

regulations make clear that DOC may require prisoners to agree to comply with release 

conditions to be eligible for early furlough release.15 

                 We therefore must determine whether the early furlough release conditions 

imposed by 22 AAC 05.316 and .321 exceed DOC’s authority. 

                 Regulations are presumptively valid and will be upheld as 

                 long as they are consistent with and reasonably necessary to 

                 implement the statutes authorizing their adoption . . . . Thus 

                 where     a  regulation     is  adopted    in   accordance     with    the 

                 Administrative Procedures Act, and the legislature intended 

                 to give the agency discretion, we review the regulation first 

                by ascertaining whether the regulation is consistent with the 

                 statutory    provisions     which     authorize    it  and   second     by 

                 determining   whether   the   regulation   is   reasonable   and   not 


        14      Felix , 50 P.3d at 817 (citing AS 33.30.101-181 and 22 AAC 05.310-326); 

see also 22 AAC 05.121(j)(12) (clarifying that prisoner released on furlough is still 

within DOC custody and subject to supervision). 

        15       See  22   AAC   05.321(e)   (“[R]estrictions   and   supervision   required   for   a 

prerelease furlough must provide safeguards that minimize risk to the public . . . .”); 

22   AAC   05.321(c)   (“To   be   eligible   for   consideration   for   a   prerelease   furlough,   the 

prisoner   must   .   .   .   agree   in   writing   to   abide   by   the   conditions   established   for   the 

prisoner’s behavior while on furlough.”). 

        16      Libertarian Party of Alaska, Inc. v. State , 101 P.3d 616, 622 (Alaska 2004) 

(quoting Interior Alaska Airboat Ass’n v. State, Bd.   of   Game ,   18   P.3d   686,   689-90 

(Alaska 2001)) (internal quotation marks omitted). 

                                                    -9-                                              6764

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                22 AAC 05.316 and .321 are consistent with AS 33.30.101 and .111.  The 

statutes authorize DOC to implement policies regarding prerelease furloughs and provide 

for restrictions and supervision to safeguard the public prior to granting any prisoner 

furlough     release.   The     regulations    implement     the  statutes   by  specifying     furlough 

considerations,   conditions,   and   restrictions.     The   regulations   are   reasonable   and   not 

arbitrary. 22 AAC 05.321(e) mandates that the “restrictions and supervision required for 

a prerelease furlough must provide safeguards that minimize risk to the public.” 22 AAC 

05.321(c)   establishes   reasonable   furlough   eligibility   requirements,   including   that   a 

prisoner “not have a pending disciplinary action” and that a prisoner must “agree in 

writing   to   abide   by   the   conditions   established   for   the   prisoner’s   behavior   while   on 

furlough.”     Imposing   these   conditions   enables   DOC   staff   to   fulfill   AS   33.30.101’s 

mandate:     creating   and   implementing   regulations   concerning   furlough   release   while 

considering “the best interests of the prisoner and the public.”              For these reasons, the 

administrative regulations governing furlough release are valid. 

                3.	     Alaska      laws   governing      furlough     release    conditions     do   not 

                        constitute ex post facto punishment or trigger double jeopardy. 

                Hertz appears to argue that AS 33.30.101, the current statute permitting 

furlough release, is ex post facto as applied to him because the statute was passed two 

years after his sentencing.17       But the statute governing rehabilitation furloughs when 

Hertz was sentenced in 1984 did not authorize a general furlough release and expressly 

allowed DOC employees to impose release conditions on those prisoners furloughed for 

rehabilitative purposes.18     Prior to 1986, Hertz had no opportunity for a furlough release; 

        17      Ch. 88, § 6, SLA 1986. 

        18      See Former AS 33.30.260 (1976) (Rehabilitation Furloughs): 

                The commissioner may authorize a prisoner to participate in 


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the current statutory and regulatory framework is more, not less, favorable to Hertz.19 

Hertz therefore has no viable federal or state ex post facto claim. 

                 Hertz’s other assertion that imposing furlough release conditions constitutes 

“multiple punishment for the same offense” in violation of constitutional proscriptions 

against double jeopardy is unfounded.  It is not punishment to allow a prisoner an early 

release furlough, with or without conditions. 

                 4.	     Alaska laws governing furlough release conditions do not violate 

                         federal due process rights. 

                 Hertz does not have a federally created liberty interest in furlough release 

protected by the federal constitution.         In Diaz v. State, Department of Corrections , we 

explained that the “point at which restraints on a convicted prisoner’s freedom implicate 

a federal-constitution-based liberty interest requiring due process of law is when . . . 

freedom is restrained in excess of [the] sentence in an unexpected manner.”20                    Prisoner 

        18	      (...continued) 

                 educational,       training,    medical,     psychiatric,      or   other 

                 rehabilitation     programs      approved     by   the   commissioner. 

                 When   the   prisoner   is   not   participating   in   a   rehabilitation 

                program, the prisoner shall be confined in the jail unless the 

                 commissioner directs otherwise.  If the prisoner violates the 

                 conditions     established    for  the   conduct   or   custody    of   the 

                prisoner,   the   commissioner   may   order   the   balance   of   the 

                prisoner’s      sentence    to   be  spent    in  actual   confinement. 

                 (Emphasis added.) 

Ch. 171, § 6, SLA 1976. 

        19       See generally Doe v. State , 189 P.3d 999, 1003 (Alaska 2008) (explaining 

ex   post   facto   clause   applies   only   to   laws   having   adverse   effects   such   as   increasing 

punishment or eliminating a defense). 

        20       239 P.3d 723, 730 (Alaska 2010) (citing Sandin v. Conner, 515 U.S. 472, 


                                                   -11-	                                             6764

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Diaz was released and placed on electronic monitoring by DOC.21             Diaz’s employer 

accused her of theft, and DOC officers returned her “to a correctional center for the 

remaining four weeks of her sentence, where she was briefly segregated from the general 

population and had her telephone privileges restricted for a few days.”22       We held that 

Diaz’s federal due process rights were not violated because DOC’s actions “did not 

implicate a liberty interest based in the Fourteenth Amendment because they did not 

prolong her sentence.”23    Diaz ’s logic applies here with equal force; because denying 

Hertz a furlough release did not prolong his overall sentence or introduce new restraints 

on his freedom, it did not implicate federal due process rights. 

               In Diaz we also recognized that a federal constitutionally protected liberty 


484 ( 1995) (noting Due Process Clause of its own force protects an interest in freedom 

from restraint exceeding sentence in an unexpected manner)); see also Larson v. Cooper, 

90 P.3d 125, 134 (Alaska 2004) (holding under the Fourteenth Amendment, “[a]s long 

as the conditions or degree of confinement to which the prisoner is subjected is within 

the sentence imposed upon him and is not otherwise violative of the Constitution, the 

Due Process Clause does not in itself subject an inmate’s treatment by prison authorities 

to judicial oversight.” (quoting Ky. Dep’t of Corr. v. Thompson , 490 U.S. 454, 460­ 


       21     Diaz , 239 P.3d at 725. 

       22     Id. at 724-25. 

       23     Id. at 730 (citing Sandin, 515 U.S. at 476, 484, 487 (rejecting argument that 

prisoner   had   liberty  interest  under  Due   Process   Clause   in  remaining   free  from 

disciplinary segregation because underlying record of misconduct would not inevitably 

affect sentence duration)); Larson , 90 P.3d at 134 (citing Hewitt v. Helms, 459 U.S. 460, 

468 (1983) (‘‘[T]he guarantee of due process does not provide .  . . a right to avoid 

segregation from the general prison population.’’)). 

                                             -12-                                        6764

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interest may be created by state law.24         We noted that “[i]n Sandin v. Conner . . . the 

United States Supreme Court held that generally the only state-created liberty interests 

protected by the Fourteenth Amendment are those in freedom from restraints which 

‘impos[e] atypical and significant hardship on the inmate in relation to the ordinary 

incidents of prison life.’ ”25    DOC’s denial of Hertz’s furlough release did not create an 

atypical or significant hardship for Hertz in comparison to ordinary prison life because 

it simply resulted in a continuation of the status quo of the sentence imposed on him in 

       26 Hertz therefore did not have a state-law-based liberty interest in furlough release 


protected by the federal constitution.         This conclusion is consistent with federal case 


        24      Diaz , 239 P.3d at 730. 

        25      Id. at 731 (quoting Sandin, 515 U.S. at 484) (citing Larson , 90 P.3d at 135). 

        26      See,   e.g., Dominique   v.   Weld ,   73   F.3d   1156,   1159-61   (1st   Cir.   1996) 

(holding removal of convicted prisoner from community work release program did not 

implicate state-created   liberty interest because “his transfer to a more secure facility 

subjected him to conditions no different from those ordinarily   experienced by large 

numbers of other inmates serving their sentences in customary fashion”). 

        27      See, e.g., Lee v. Governor of State of N.Y. , 87 F.3d 55, 58 (2nd Cir. 1996) 

(holding rule rendering inmate eligible for temporary release program did not implicate 

interest protected by Fourteenth Amendment);             Venegas v. Henman, 126 F.3d 760, 765 

(5th Cir. 1997) (“The loss of the mere opportunity to be considered for discretionary 

early release is too speculative to constitute a deprivation of a constitutionally protected 

liberty interest.”); Elliott v. Vt. Dep’t of Corr. , No. 1:08-CU-42, 2008 WL 5104203, at 

*3 (D. Vt. Nov. 6, 2008) (“Given that the DOC has unbridled discretion with respect to 

each furlough applicant, it cannot be argued that Plaintiff had a legitimate expectation 

of release entitling him to due process protection.” (citing Olim v. Wakinekona, 461 U.S. 

238, 249 (1983) (no state-created liberty interest when decision-maker can deny relief 

“for   any   constitutionally    permissible     reason   or  for  no  reason    at  all”)));  Seifert   v. 

Hofmann , No. 2:08-CU-259, 2009 WL 4931323, at *6 (D. Vt. Dec. 15, 2009) (holding 


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

               In the absence of a liberty interest in furlough release protected by the 

federal constitution, Hertz’s federal due process claim must fail. 

               5.	     Alaska     laws   regarding     furlough     release   conditions    do   not 

                       facially violate state constitutional due process rights. 

               We      have    “interpreted   the  due   process   guarantee    under   the  Alaska 

Constitution more broadly than the United States Supreme Court has interpreted the 

identical provision of the United States Constitution.”28        For example, article 1, section 

12 of the Alaska Constitution gives rise to a constitutional right to rehabilitation affecting 

the due process analysis of a prisoner’s liberty interests,29 and furloughs are explicitly 

designed to further the goal of rehabilitation.30       But the right to rehabilitation does not 

create a right to furlough for all prisoners. 

               Eligibility for furlough release depends as a threshold matter on a prisoner’s 

custody classification.   22 AAC 05.201 describes different custody levels that prisoners 

may be assigned and establishes the degree of staff supervision required for the custody 

level.  “Minimum Custody” prisoners may be eligible for furlough 36 months before 

scheduled   release,31    “Medium   Custody”   prisoners   may   be   eligible   for   furlough   24 

        27      (...continued) 

inmate had “no liberty interest in early release from prison”). 

        28     James v. State, Dep’t of Corr. , 260 P.3d 1046, 1051 (Alaska 2011) (citation 

omitted) (internal quotation marks omitted). 

        29     See   Larson ,   90   P.3d  at  135   (recognizing    visitation  is  component     of 

constitutional right to rehabilitation). 

        30     See,   e.g.,   AS   33.30.101(a)   (“The   commissioner   shall   adopt   regulations 

governing the granting of prerelease and short-duration furloughs to prisoners [for a list 

of reasons related to rehabilitation or] . . . for any other rehabilitative purpose . . . .”). 

        31     22 AAC 05.201(b)(1)(D). 

                                                -14-	                                         6764

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months before scheduled release,32 and          “Close Custody” prisoners are not eligible for 

furlough.33    Prisoners are subject to reclassification at the superintendent’s discretion, 

which must include a review of the prisoner’s furlough eligibility.34                In McGinnis v. 

Stevens we held that once in DOC custody, the “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.”35           The same is true for furlough 

eligibility.    In   the  absence    of  a  claim   that  Hertz   was   denied    fair  and  impartial 

consideration      and  that  DOC     was   motivated    to  impose    particular   furlough    release 

conditions for an improper purpose, we see no violation of Hertz’s state constitutional 

due process rights. 


                For the reasons stated above, we AFFIRM the superior court’s dismissal 

of Hertz’s suit against Macomber and Simons. 

        32      22 AAC 05.201(b)(2)(D).

        33      22 AAC 05.201(b)(3)(E).

        34      22 AAC 05.212(a).

        35      543   P.2d   1221,   1237   (Alaska   1975)   (also   noting   that   if   administrative

classification   action   is   motivated   by   and   is   pretext   for   disciplinary   action,   Alaska 

Constitution will afford inmate greater due process protections). 

                                                 -15-                                              6764 

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