PCR Exhibits - Alaska State of Corruption

selling their boats to avoid forfeiting them. Waist, 10 P.3d at 1149. The public
pronouncements of the various ATV owner’s groups indicates that there is a
significant risk that young ATV owners will conceal, remove, or sell their ATV’s
before they turn them over to the state.
In Waiste, the court rejected the argument that a pre-deprivation hearing
would impose a burden on the state because the forfeiture statutes at issue
required an immediate post-deprivation hearing. Id. at 1150. The court
concluded that the additional burden in requiring the adversarial hearing prior
to the seizure was not significant. Id.
C. The Risk of an Erroneous Deprivation
The lack of a pre-deprivation hearing increases the risk of an erroneous
deprivation. The facts demonstrate this, for the officer seized Cousin’s ATV by
mistake. A pre-deprivation hearing would ameliorate the risk of a similar
mistakes.
D. Balancing the Factors
The facts tend to favor weighing the balance in favor of the state’s postdeprivation
hearing. In Waiste, the court concluded that the risk that fishing
violators would hide or sell their boats justified ex parte hearings to seize the
boats. Id. at 1152. ATV’s are easier to transport, conceal, and sell, than fishing
boats and several ATV owners groups have indicated that their younger
members will not give up their ATV’s.
An argument could be made that the facts favor Hunter, for the fishers in
Waiste were involved in criminal conduct. The facts indicate that most people
under 21 do not commit violent crime and that most people under 21 who
possess four-wheel ATV’s do not use them to commit crimes. This argument is
not particularly strong because it is really aimed at the reasonableness of the
statute rather than the level of process required.
II. Takings Clause – 15%
Hunter may have a claim under the takings clause depending on whether the
court views the seizure of the ATV as an exercise of police power or not. Article
I, Section 18 of the Alaska Constitution provides that “[p]rivate property shall
not be taken or damaged for public use without just compensation.” The
protections of the takings clause extend to personal property as well as real
property. Waiste, 10 P.3d at 1154. Alaska’s takings clause offers broader
protection than the federal clause. Id. Alaska’s clause also ensures
compensation for temporary takings as well as permanent takings. Id.
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The Alaska Supreme Court recognizes two instance of per se taking: (1) when
there has been a physical invasion of the property and (2) where a regulation
denies a person all economically feasible use of the property. R & Y, Inc. v.
Municipality of Anchorage, 34 P.3d 289, 293 (Alaska 2001). But not all
acquisitions of private property by the state are takings. Waiste, 10 P.3d at
1154. The confiscation of private property through an exercise of the
government’s police power is not a taking requiring just compensation. Id.
In Waiste, the government seized the plaintiff’s fishing boat because it
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