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W. Johnson et al v. AK Dept. Fish & Game (11/29/91), 836 P 2d 896
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
WALTER A. JOHNSON, SAMMY )
JOHNSON, HAROLD GRAY, )
RUSSELL BOGREN, MYRON JOHNSON, )
ELI HANLON, JR., VERNON )
HANSON, JERRY MILTON, )
CLARENCE MILTON, JR., DARYL )
JAMES, ALEX JAMES, SHELDON )
JAMES, CAMERON JAMES, BILLY )
WILLIAMS, and BILL MILTON, )
)
Appellants/ ) File No. S-3000/3001
Cross-Appellees, )
)
v. ) 1JU 85 2764 Civil
)
ALASKA STATE DEPARTMENT OF ) O P I N I O N
FISH & GAME, ALASKA BOARD )
OF FISHERIES, STATE OF )
ALASKA, ) [No. 3778 - November 29, 1991]
)
Appellees/ )
Cross-Appellants. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Thomas M. Jahnke, Judge.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellants/Cross-Appellees. Tricia Collins,
Juneau, for Appellees/Cross-Appellants.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
The appellants, all Alaska Native fishermen, began their
action in superior court alleging that emergency orders issued
by the Alaska Department of Fish and Game (Department) and
regulations promulgated by the Alaska Board of Fisheries
(Board) discriminated against them because of their race.
After a bench trial, the superior court entered judgment
against the state, finding that the Department and Board had
violated AS 18.80, the Alaska Human Rights Act. The superior
court, however, awarded the plaintiffs only declaratory
relief.
The plaintiffs have appealed three aspects of the superior
court's decision: (1) the court's finding that they did not
prove compensatory damages with reasonable certainty; (2) the
court's ruling that punitive damages are not available against
the state for violations of AS 18.80, the Alaska Human Rights
Act; and (3) the superior court's refusal to accord issue
preclusive effect to the findings and conclusions in an order
of the Alaska Human Rights Commission. We reverse the
superior court's decision on compensatory damages and remand
for a redetermination of damages on the present record. We
affirm the court's ruling on punitive damages. We reverse the
court's decision on issue preclusion and modify the judgment
accordingly.
Finally, the superior court decided that sovereign immunity
does not bar actions for compensatory damages against the
state under AS 18.80. The state appeals that decision. We
affirm.
I
A
Alaska Native fishermen from the Tlingit community of
Yakutat, in southeast Alaska, fish for salmon in the rivers of
their region and in the ocean surf.1
At the mouths of the Alsek and East Alsek rivers, fifty
miles south of Yakutat, surf fishing is especially hazardous.
As a result, the inriver sites on the Alsek and East Alsek are
distinctly preferable. The Yakutat fishermen, however, rarely
venture far upstream on either of these rivers. On the Alsek
and East Alsek, the better inriver sites are the territory of
white fishermen. Several factors contribute to the racial
division at the Alsek and East Alsek, but the most important
of these is the territorial hostility shown by some white
fishermen. Evidence indicates that the white fishermen began
driving the Native fishermen downstream early in this century.
By 1931, the Native fishermen rarely fished further upstream
than the rivers' mouths. There is no doubt that over the
years the inriver fishermen have resorted to violence,
including use of firearms, to maintain control of the inriver
sites.
Two agencies share the main responsibility for managing the
Alsek and East Alsek salmon fisheries: the Department of Fish
and Game and the Board of Fisheries.2 The primary concern of
both agencies is insuring that sufficient numbers of migrating
salmon escape the gear of fishermen and continue on to spawn
each year. Measuring escapement on the Alsek River presents
especially difficult problems. To begin with, the Alsek is
well over one hundred miles long, but only the last twenty
miles flows within Alaska. The remainder of the river and its
headwaters are in Canada. Additionally, the Alsek water in
Alaska is heavy with silt, and early estimates of escaping
salmon are often inaccurate. By contrast, escapement in the
East Alsek River is much easier to measure, because the river
is only three and one-half miles long, clear and entirely
within Alaska. Not surprisingly, the state employs different
management techniques at each of the rivers: Regulators may
respond quickly to local indications of poor escapement on the
East Alsek, but they generally must wait until definitive data
on total escapement arrives from Canada at the end of the
fishing seasons before they can adjust limits on the Alsek.
The Board is a policy-making agency;3 it promulgates
regulations that, among other things, designate areas and
times for fishing, size and type of gear, and minimum
distances between units of gear.4 The Department is more of a
policy-implementing agency, providing specific, on-site manage
ment of salmon stocks during the fishing season.5 For
example, the Department conducts ongoing studies of salmon
escapement during fishing season, and, to protect the salmon
stocks, may issue emergency orders that restrict the area and
the time within which fishing may occur at any given fishery.
Several Department officials share the power to issue such
orders in any particular fishing area. The hierarchy of
Department officials with this power in the Yakutat area
includes a Regional Supervisor, a Finfish Management Coordina
tor for Southeastern Alaska, and an Area Management Biologist
for the Juneau Management Area. These officials are based in
Juneau. The area management biologist occasionally visits the
Yakutat area during fishing season. Otherwise, for on-site
information and recommendations regarding regulation of the
Yakutat fisheries, the Department officials in Juneau are
mainly dependent upon a fourth official: the person who has
been fishery technician in the Yakutat area since 1961, Alex
Brogle.
Throughout his tenure in Yakutat, Alex Brogle openly
despised the Yakutat surf fishermen. The superior court
concluded after trying this case:
Brogle displayed a reservation mentality
that led him to the view that the Yakutat
natives should stay in fisheries close to
town and not venture to the Alsek and East
rivers where they would interfere with the
commercial harvesting activities of people
for whom Brogle had higher regard.
Unquestionably Brogle was not disposed to
manage the Alsek and East river fisheries in
such a way as to preserve, to the extent
possible, equality of opportunity to catch
fish.
The "people for whom Brogle had higher regard,"of course, were
the white, inriver fishermen.
Brogle's supervisors at the Department clearly knew of
Brogle's racist and discriminatory bent; Brogle's weekly and
seasonal reports to Juneau typically contained racist slurs,
especially slurs attacking the Yakutat natives. Nonetheless,
by all accounts, Brogle exercised significant influence over
the Department's management of the Alsek and East Alsek
rivers. Brogle's influence was especially apparent in the
Department's response to the crisis in the Alsek fishery that
followed the 1978 and 1979 salmon runs.
In 1978 and 1979, the number of persons fishing in the surf
and at inriver sites on the Alsek and East Alsek increased
dramatically.6 For example, eighteen people fished the Alsek
in 1977, twenty-nine in 1978, and thirty-eight in 1979. Not
surprisingly, 1979 saw a record catch of red salmon in the
area. Five years earlier, in the 1974 season, the number of
fishermen in the area had reached a previous all-time high.7
This suggested that there might be a repercussive effect in
1979, among salmon returning to their spawning waters five
years after hatching there. Nonetheless, initial Department
measurements showed that an acceptably large number of fish
were escaping in 1979. Later, however, data from Canada
proved that the Department had been wrong in respect to the
Alsek River; final figures showed that the 1979 escapement on
the Alsek was "disastrously low." By the time the Department
learned of its error, of course, the regulatory agencies could
only respond by regulating the 1980 season on the Alsek.
Alex Brogle recommended to his supervisors that the best
response to the emergency would be to close the surf fishery
at the Alsek, to limit fishing inriver to two days per week,
and to make adjustments as necessary during the season. He
justified his solution by arguing that the recent increase in
surf fishing was a primary cause of the problem. Brogle's
recommendations became public on May 7, 1980, when two members
of the Board of Fisheries held an open meeting in Yakutat.8
Four Department officials attended the meeting, including Paul
Larson, the Finfish Management Coordinator for Southeast
Alaska, and Brogle. Some fifteen to twenty local fishermen
and some members of the Yakutat Advisory Board also attended
the meeting.
Brogle explained his proposal to the assembly. The Yakutat
residents countered with a proposal that included reduced gear
size and limited open surf fishing to within one-half mile of
the river mouths. The Department officials admitted that
either their solution or a solution similar to the local
residents' counter-proposal probably would work. Evidence
shows, however, that Department officials disfavored the gear
reduction proposal in part because it would protect the native
surf fishermen at the expense of the inriver white fishermen.
As the Area Management Biologist Don Ingledue wrote, one week
later, in a memorandum to another Department official:
The [Department] staff's position
is that either management approach would be
acceptable from a resource conservation
standpoint. A regulatory emergency does not
exist that would je[o]p[a]rdize the resource
since we do have emergency order powers
limiting time and area. However, any
adjustments in gear size would have to be
instituted under the Emergency Regulatory
Authority of the Commissioner and the Board
of Fisheries.
The gear reduction approach would
benefit the local residents more than the
management plan originally proposed by the
staff. Again it should be pointed out that
only local Yakutat fishermen were present at
the meeting and many Alsek River fisherman
had no knowledge of the meeting since they
reside out of state and community.
Ingledue sent copies of this memorandum to Larson and Brogle.
Exactly two weeks after Ingledue sent his memo, on May 027,
1980, Larson issued Emergency Order No. 1-Y-1-80, which banned
surf fishing in the area that encompassed the Alsek and East
Alsek river mouths and which limited inriver fishing to two
days per week. The order took effect on June 2, 1980, and ran
through June 22, 1980, when Ingledue issued Emergency Order
No. 1-Y-2-80, which lifted the ban on surf fishing. The new
order explained: "The early portion of sockeye [red salmon]
run is now past and effort in the Alsek-East River area has
declined. . . . Shifting of the river mouth sand bar has
reduced the past efficiency of the net gear in [the surf] area
and the closure is no longer necessary."
In late 1980, the Board of Fisheries adopted the surf
closure at the Alsek and East Alsek rivers as part of a
permanent regulation affecting "all rivers south of the
Dangerous River." The new regulation also limited gear length
and reduced the maximum number of allowable nets per fisherman
for part of the season. Importantly, the regulation also
directed the Department to open, by emergency order, the surf
fishery at the East Alsek River during the peak week of the
red salmon run. The partial opening of the surf was
necessary, in the Board's opinion, to avoid violence between
the inriver fishermen and the Yakutat native fishermen.
According to Larson, the Board's sense of the likelihood of
violence was in part due to testimony that the board had heard
from surf fishermen who said that, with the surf fishery
closed, "they were afraid to go fish in [the Alsek and East
Alsek] rivers."
Unfortunately, the emergency opening of the East Alsek surf
fishery from July 20 to August 9, 1981, was interrupted by a
fierce storm, which forced surf fishermen to abandon some nine
teen nets. Alex Brogle subsequently claimed that the aban
doned nets killed and wasted a "tremendous"number of fish.
Ultimately, two separate tribunals -- the Human Rights
Commission and the superior court -- both concluded that the
storm-tangled, abandoned surf nets had not, in fact, caused
much waste of fish. At the time, however, Brogle's claims of
waste in 1981 were instrumental in convincing the Department
to keep the East Alsek surf fishery closed during the peak
period in 1982.
On May 27, 1983, the Alaska Human Rights Commission enjoined
the Department and the Board of Fisheries "from issuing and/or
enforcing any regulation, order, or other official measure
closing the surf at the Alsek or East Rivers at times when
fishing within these rivers is allowed." On June 19, 1983,
the state opened the Alsek and East Alsek surf fisheries. The
record indicates that no surf fishermen worked in the Alsek
surf in 1983, but that a few did fish in the East Alsek surf
that year.
B
Walter Johnson, one of the surf fishermen, filed a complaint
with the Commission on July 7, 1980, alleging that the
Department's first emergency order closing the surf fishery
discriminated against him and other native surf fishermen on
the basis of their race. The state filed an answer in
November 1981; substantial discovery followed; and the
Commission conducted a hearing in Yakutat on April 19, 1982.
The Commission hearing officer, (now Judge) Joan M. Katz,
issued a decision on January 21, 1983, in which she concluded
that the state "has discriminated against plaintiff in
violation of AS 18.80.255(1) [of the Alaska Human Rights Act]
and . . . injunctive relief should issue." The hearing
officer specifically found that Alex Brogle's "recom-
mendations formed the basis for official actions," and his
racial prejudice against the natives "infected the entire
process" of fishery regulation. On May 27, 1983, the three
Human Rights Commission members unanimously adopted the
hearing officer's proposed decision as a final order. The
state did not appeal the Commission's order, as it was
entitled to do under AS 18.80.135.
Meanwhile, on March 13, 1981, the surf fishermen had filed a
complaint in the superior court seeking "an injunction,
damages, and other appropriate relief," pursuant to AS
18.80.255, 42 U.S.C. 1983, and the fourteenth amendment to
the federal constitution. In April 1984, after the
Commission's order issued in the parallel case,9 the state
filed an amended answer in which it asserted nine affirmative
defenses. The most important of these defenses invoked
various theories of sovereign immunity, including state
immunity from punitive damages. The surf fishermen filed an
amended complaint on January 2, 1986, adding a reference to
the Commission findings, an allegation that surf fishing was
"part of the heritage of Yakutat Alaska natives,"and a new
count based on article I, section 3 of the Alaska Consti
tution.
The surf fishermen next moved for partial summary judgment,
arguing that the Commission's final order precluded
relitigation of the state's liability under AS 18.80.255. The
state, in turn, moved for summary judgment, arguing that
sovereign immunity, state immunity from punitive damages, and
state immunity from suit under 42 U.S.C. 1983 barred the
surf fishermen's claims.
The superior court denied, without comment, the surf
fishermen's motion for partial summary judgment. The superior
court also denied part of the state's motion for summary
judgment, finding that the state was not immune from suit
under the Alaska Civil Rights Act. The superior court, how
ever, granted part of the state's summary judgment motion,
holding that the state was immune from liability for punitive
damages and that, as a "nonperson,"the state was not subject
to liability under 42 U.S.C. 1983.
Accordingly, in November 1987, the parties proceeded to a
five-week bench trial, before Judge Thomas M. Jahnke, on the
remaining issues in the case. On May 3, 1988, Judge Jahnke
issued a memorandum of decision in the case. In sum, the
superior court found that the state's closures of the surf
fishery constituted a facially neutral practice that had no
disparate impact on the native fishermen because they were
still "free to fish all the remaining open waters." On the
other hand, the superior court found that a "facially neutral
practice that did have a substantial discriminatory impact . .
. was the promulgation of the surf closures and restrictions
without creating any mechanisms to resolve the conflicts
between inriver and surf fishermen that were certain to
occur." The superior court refused to find liability based on
implied causes of action under the federal and state
constitutions, but did find that the state had violated AS
18.80.255 of the Human Rights Act. The superior court further
found that the surf fishermen had failed to show either the
existence or extent of lost profit damages. Accordingly, the
superior court awarded the surf fishermen only declaratory
relief.
The surf fishermen have appealed nearly all of the rulings
and findings and awards adverse to them in this case except
the dismissal of their federal law claims. The state has
cross-appealed on several points, most importantly on the
superior court's ruling on sovereign immunity.10
II
The superior court determined two questions of law before
trial when it ruled on the parties' motions for summary
judgment. Both determinations involved pure questions of law,
and we review the superior court's decisions on those
questions de novo.11
A
Article II, section 21 of the Alaska Constitution provides
that "[t]he legislature shall establish procedures for suits
against the state." In 1966, the legislature amended the
Alaska Human Rights Act to include AS 18.80.255, which
provides, in relevant part:
It is unlawful for the state or any of
its political subdivisions
(1) to refuse, withhold from or
deny to a person any local, state or federal
funds, services, goods, facilities,
advantages or privileges because of race,
religion, sex, color or national origin; . .
. .
Ch. 79, 1, SLA 1966. In 1970, the legislature added a new
subsection to AS 22.10.020, the statute that establishes the
original jurisdiction of the superior court, to permit actions
under AS 18.80 in the superior court:
The superior court is the court of
original jurisdiction over all causes of
action arising under the provisions of AS
18.80. . . . In an action brought under this
subsection, the court may grant relief as to
any act, practice or policy of the defendant
which is prohibited by AS 18.80 . . . . The
court may enjoin any act, practice or policy
which is illegal under AS 18.80 . . . and may
order any other relief, including the payment
of money, that is appropriate.
AS 22.10.020(c), enacted by Ch. 240, 1, SLA 1970 (currently AS
22.10.020(i)).
As the superior court noted when it denied summary judgment
on this point, and as the surf fishermen argue on appeal, AS
18.80.255(1) and AS 22.10.020, taken together, appear to
constitute express legislative consent for persons to bring
particular civil rights actions against the state. We agree.
The state argues that, notwithstanding the consent to suit
effect of the statutes quoted above, the extent to which the
state may be liable under AS 18.80 ultimately depends upon
application of yet another statute, AS 09.50.250.12 This third
statute establishes the general rule that "[a] person or
corporation having a contract, quasi-contract, or tort claim
against the state may bring an action against the state in the
superior court." AS 09.50.250. The statute also, however,
establishes state immunity from a variety of particular
claims, among which are claims "for tort . . . based upon the
exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a state agency
or an employee of the state, whether or not the discretion
involved is abused." AS 09.50.250(1). According to the
state, the Department and the Board of Fisheries exercised
their discretionary powers when it chose to close the surf
fisheries from 1980 to 1983. Thus, goes the argument, AS
09.50.250(1) bars the surf fishermen's claim against the
state. We reject this argument.
As we repeatedly have explained, "[s]tate liability is the
rule; immunity is the exception." Freeman v. State, 705 P.2d
918, 920 (Alaska 1985). The legislature specifically provided
for actions against the state in AS 18.80.255. The
legislature also provided for recovery of damages, when
appropriate, for state violations of AS 18.80. See AS
22.10.020. The general exceptions to state tort liability
that the legislature established in AS 09.50.250(1) have no
control over the specific consent to state liability under the
Human Rights Act.13 Accord Marsh v. Department of Civil Serv.,
370 N.W.2d 613, 619 n.10 (Mich. App. 1985) ("Suits against the
state for employment discrimination pose no immunity from suit
or liability problems since the state . . . is subject to the
provisions [of the state civil rights acts] which . . . allow
actions to be brought in the circuit courts for such discrim
ination."); State, Dep't of Correctional Serv. v. State Div.
of Human Rights, 452 N.Y.S.2d 746, 748 (N.Y. App. Div. 1982)
("The Legislature, in enacting the Human Rights Law, has
waived sovereign immunity to the extent of subjecting the
State to the regulations of the law."). The superior court
correctly denied the state's motion for summary judgment on
this point.
B
The superior court found that although the state enjoyed no
immunity from claims brought under AS 18.80 and AS
22.10.020(i), the state nevertheless was immune from liability
for punitive damages. The surf fishermen argue that the
superior court erred. We disagree with the surf fishermen on
this aspect of sovereign immunity.
In Loomis Elec. Protection Inc. v. Schaefer, 549 P.2d 1341,
1343 (Alaska 1976), we held that "the broad language of AS
22.10.020(c) includes a legislative intent to authorize an
award of compensatory and punitive damages for violations of
AS 18.80." We expressed no opinion in Loomis, however, on the
specific question of the availability of punitive damages when
the state has violated AS 18.80. We believe that the general
authorization for damages awards in AS 22.10.020(c) is not
sufficient to support an award of punitive damages against the
state. On the contrary, government entities may be liable for
punitive damages only pursuant to express and specific
statutory authority. See Richardson v. Fairbanks North Star
Borough, 705 P.2d 454, 456 n.1 (Alaska 1985) (no punitive
damages against municipality without statutory authorization).
The superior court correctly determined that the state may not
be found liable for punitive damages for violations of AS
18.80.
III
The superior court determined prior to trial that the Human
Rights Commission decision and order should receive no issue
preclusive (collateral estoppel) effect. The surf fishermen
argue that the superior court erred as a matter of law on this
point.14 According to the surf fishermen, the Commission's
decision and order became "binding"upon the state when the
state failed to appeal that decision and order to the superior
court. Thus, the surf fishermen argue, the superior court
wrongly permitted the state to relitigate the underlying
factual and legal issues actually litigated before the
Commission hearing officer. We essentially agree with the
surf fishermen's argument.
There are four basic requirements for the application of
issue preclusion: the party against whom preclusion would work
must have been a party, or in privity with a party, to the
first action, Rapoport v. Tesoro Alaska Petroleum Co., 794
P.2d 949, 951 (Alaska 1990); the issue to be precluded from
relitigation must be identical to the issue decided in the
first action, id.; the first action must have resolved the
issue by final judgment on the merits, id.; and the
determination of the issue must have been essential to the
final judgment, Restatement (Second) of Judgments 27 (1982).
In Alaska, as in most jurisdictions, issue preclusion may
apply to administrative adjudications. Holmberg v. State,
Div. of Risk Management, 796 P.2d 823, 825 (Alaska 1990); CFEC
v. Byayuk, 684 P.2d 114, 122 (Alaska 1984); Jeffries v.
Glacier State Tel. Co., 604 P.2d 4, 8-9 (Alaska 1979). But as
we explained in Holmberg, Byayuk and Jeffries, a determination
of the appropriate preclusive effect of administrative
decisions is possible only on a case by case analysis.
Holmberg, 796 P.2d at 825; Byayuk, 684 P.2d at 122; Jeffries,
604 P.2d at 8-9.
The question of issue preclusion in this case is somewhat
complicated by the statutory scheme of the Human Rights Act.
The legislature created concurrent original jurisdiction for
actions involving violations of AS 18.80 in both the
Commission and in the superior court. Compare AS
18.80.060(a)(4) & (b)(3); 18.80.100; 18.80.120; 18.80.130
(Commission jurisdiction, hearing procedure, etc.) with AS
22.10.020(i) (superior court jurisdiction). In an effort to
coordinate this double jurisdiction, the legislature also
specifically provided for the preclusive effect of the
Commission's decisions in a few, critical circumstances.
The most important preclusion statute for present purposes
is AS 18.80.145.15 Section 145 requires a plaintiff who brings
a superior court action under AS 18.80 to serve a complaint on
the Commission. Section 145(a). The statute further provides
authority for the Commission to intervene in the superior
court action or to request the superior court to defer its
proceedings for up to forty-five days or such extended period
as the court may allow. Id. The statute then states:
If within the [deferral] period allowed
the commission conducts a hearing and reaches
a decision under AS 18.80.120 and 18.80.130,
the decision of the commission is binding on
the parties to the court action as to all
issues resolved in the hearing but not as to
any issues not resolved in the hearing.
Id. at (b).
In essence, AS 18.80.145 provides a mechanism by which the
Commission and the superior court may avoid jurisdictional
conflict over actions brought under AS 18.80. In the present
case, because of the procedural pace of the two parallel
actions, the Commission spent some two years processing,
investigating, hearing, and deciding its action. In that
time, the superior court action did not proceed beyond the
initial pleading stage, and the Commission had no need to
intervene or to request deferral under AS 18.80.145.16 As a
result, the language in 145 that establishes the "binding"
effect "of all issues resolved"in a Commission hearing does
not apply directly to this case. No language in 145, howev
er, suggests that issue preclusion can obtain only when the
Commission has requested deferral. On the contrary, section
145 simply makes clear that Commission decisions and orders
rendered within the deferral period must receive issue
preclusive effect. Such a deferential scheme clearly
suggests that the Commission's decisions should carry issue
preclusive effect in an appropriate case. See Holmberg, 796
P.2d at 825.
Of course, our general conclusion that the Commission's
findings should carry preclusive effect when appropriate does
not decide the concrete question of whether the superior court
properly should have accorded preclusive effect to the
particular Commission findings relevant here. The preclusive
use of prior administrative findings must always be fair.
Byayuk, 684 P.2d at 122. Fairness, at a minimum, requires
that the administrative procedure entailed "the essential
elements of adjudication."17 Id.; see also Holmberg, 796 P.2d
at 825 (citing 18 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure 4475, at 764-65 (1981)). Addi
tionally, the doctrine of issue preclusion "is at its best as
it applies to an adjudication of past facts, where the second
proceeding involves the same claim or the same transaction."
Jeffries, 604 P.2d at 9 (quoting 2 K. Davis, Administrative
Law Treatise 18.03, at 559 (1958)). However, most courts
accord the same preclusive effect to administrative adjudi
cations of legal issues as they do to judicial adjudications
of those issues. E.g., Guild Wineries & Distilleries v.
Whitehall Co., 853 F.2d 755, 758-59 (9th Cir. 1988); Eilrich
v. Remas, 839 F.2d 630, 634 & n.2 (9th Cir. 1988); see also 4
K. Davis, Administrative Law Treatise 21:2, at 49 (2d ed.
1983); Restatement (Second) of Judgments 27 & 83 (1982).18
In this case, the Commission adjudicated and resolved
numerous issues of law and fact that, if given preclusive
effect, would have altered the superior court's entire
approach to the case. The Commission's most notable factual
finding was that Alex Brogle's "recommendations formed the
basis for official actions, and his prejudice infected the
entire process." This was, in essence, a finding that
intentional discrimination against the surf fishermen on the
basis of race played a significant part in the state agencies'
decisions to regulate the surf fishery.19 The Commission's
most significant legal conclusion, of course, was that the
state had discriminated against the surf fishermen because of
race, and thus had violated AS 18.80.255.
We conclude that a determination on each of these issues was
essential to the Commission's decision. We also conclude that
it would have been fair to accord those determinations
preclusive effect. Regulations that govern the Commission's
hearing and prehearing procedures clearly provide for the
essential elements of adjudication.20 Indeed, the state does
not suggest that the proceedings before the Commission failed
to provide a full and fair adjudication of the issues
important here.21 Moreover, examination of the hearing
officer's remarkably thorough decision indicates that
adjudication of all important issues was exhaustive. The
state could have appealed the Commission decision, but chose
not to. Thus, following the reasoning of our prior cases in
this area, we hold that the superior court erred by not
according preclusive effect to the Commission's findings and
conclusions. The superior court should not have addressed the
question of the state's violation of AS 18.80.255.22 The
superior court should have focused solely on the damages
issues in the case that were not determined by the Commission,
or that, if determined by the Commission, were not essential
to the Commission's judgment.23 See Byayuk, 684 P.2d at 122;
Jeffries, 604 P.2d at 8-9; 4 K. Davis, supra, 21:2 at 49;
Restatement (Second) of Judgments 27 & 83 (1982).
IV
The parties in this case focused on the issue of special,
economic damages for lost profits. It is not particularly
clear whether the parties also tried issues of general,
compensatory damages. The superior court concluded that the
surf fishermen had failed to prove, with reasonable certainty,
that they had suffered lost profits. The superior court's
decision contains findings of fact related to the surf
fishermen's claims for general damages. The superior court
decision, however, does not contain any express conclusion as
to the availability of general compensatory damages nor does
it expressly deny them to the surf fishermen.
"[A] determination of damages by the trial court is a
finding of fact which will not be disturbed on appeal unless
clearly erroneous." State v. Guinn, 555 P.2d 530, 544-45
(Alaska 1976). We have reviewed the record in this case and,
we do not find clear error in any of the superior court's
factual findings. However, we do not limit our review of the
superior court's damages decision to simply an evidentiary
review. "[T]his court will also intervene when the trial
court's calculations are in disregard of a rule of law
pertaining to damage measures." Id. at 545. In the present
case, we find that the superior court improperly applied the
law governing lost profits damages and general compensatory
damages. We review each error in turn.
A
Obviously, the superior court's authority to order any
relief for violations of AS 18.80, "including the payment of
money"encompasses the authority to award special damages for
lost profits. AS 22.10.020; see also Loomis, 549 P.2d at
1343. We previously have held that damages for lost fishing
profits, although impossible to prove with mathematical
precision, are recoverable if proved with "reasonable
certainty." Williams v. Eckert, 643 P.2d 991, 996 (Alaska
1982) (quoting Reefer Queen Co. v. Marine Construction &
Design Co., 440 P.2d 448, 452-53 (Wash. 1968)). Reasonable
certainty requires a showing of actual loss of profits and a
reasonable basis upon which to compute an award. Id.; see
also Alaska Children's Serv., Inc. v. Smart, 677 P.2d 899, 902
(Alaska 1984) ("Generally, once the existence of lost profits
is established, the actual amount need not be proven
exactly."). The superior court explicitly found that the surf
fishermen had failed to show either that the state's acts or
omissions caused them any lost profits or the extent of any
lost profits. We disagree.
The state concedes that it restricted access to the surf
fisheries in order to prevent fishermen, including the
plaintiffs, from catching as many salmon as they otherwise
would have caught. This case is controlled by the
Commission's determination that the state's restrictions
illegally discriminated against the surf fishermen. Thus, any
fishing profits that the surf fishermen would have earned if
the state had not illegally discriminated against them are, if
proved, recoverable. Accordingly, any surf fishermen who can
show that he would have fished in the restricted areas during
the illegally restricted periods has proved the bare fact of
actual lost fishing opportunity. The only remaining question
is whether there is a reasonable basis upon which to calculate
the extent to which lost opportunity caused lost profits.24
As we explained in Williams, we will not deny recovery
unless the best available evidence on damages provides "no
possibility of a reasonably proximate estimation" of lost
fishing profits. Williams, 643 P.2d at 996 (quoting Pacific
Steam Whaling Co. v. Alaska Packers Ass'n, 72 P. 161, 163
(Cal. 1903). In the present case, the surf fishermen's expert
witness offered alternative methods for gauging the amount of
fish that the surf fishermen would have caught if the surf
fishery had not been closed. The superior court rejected both
of the expert's methods as unreliable. We agree with this
aspect of the court's decision.
Using his first method of gauging lost profit, the surf
fishermen's expert calculated the percentage of the total
fishery catch in 1979 that the surf fishermen took25 and then
attributed the remaining percentage to the inriver fishermen.
The expert then assumed that the inriver fishermen caught
similar percentages of the available catch in the years 1980
to 1983. From those projections, the expert estimated the
catch that the surf fishermen would have taken during the
period from 1980 to 1983. The product of that calculation was
an aggregate loss of $1,070,091. The expert's second method
of estimating damages began with the assumption that the
inriver fishermen took all of the available harvest in 1980-
83. The expert then multiplied the inriver totals from 1980-
83 by the percentage of total harvest that the surf fishermen
took in 1979. The product of that calculation was $688,814.
The superior court had a variety of reasons for rejecting
both of the expert's projections.26 We find the following
rationale dispositive: The salmon runs, the size of
permissible gear, the length of season openings, and the total
number of fishermen at the surf and inriver fisheries all
fluctuated from 1979 to 1983. Consequently, the percentage of
total harvest that the surf fishermen took in 1979 has no
rational correlation to the percentages of the total that they
would have taken in the surf from 1980 to 1983. We thus find
no error in the superior court's decision to reject the surf
fishermen's calculations of aggregate lost profits.
The superior court's decision to reject the surf fishermen's
individual showings of lost profits, however, is not as
convincing. It is in this aspect of the decision that the
superior court improperly ignored "a rule pertaining to damage
measures." Guinn, 555 P.2d at 545.
When the crux of a case is that the defendant's acts
prevented the plaintiff from fishing during a definite period
in certain waters, the harvest that other fishermen took
during that period in those waters may provide a reasonable
basis upon which to determine an individual plaintiff's loss.
See Williams, 643 P.2d at 996; West v. Whitney-Fidalgo
Seafoods, Inc., 628 P.2d 10, 17 (Alaska 1981). Similarly, the
plaintiff's own harvests in the period proximate to the lost
time period may provide a reasonable basis to establish lost
profits. See Williams, 643 P.2d at 995-96. Naturally enough,
both types of evidence may work together to provide a
reasonable calculus. See id.; Reefer Queen, 440 P.2d at 451-
53. Evidence of prevailing conditions27 (i.e., the numbers of
fish available for harvest, the probable effect of intervening
weather, the impact of increased competition, the competence
of the plaintiff or crew seeking damages etc.) also may play a
part in such a calculation. E.g., Williams, 643 P.2d at 995-
96; Berg v. General Motors Corp., 555 P.2d 818, 824-25 (Wash.
1976); Reefer Queen, 440 P.2d at 451. And finally, while most
of the cases on this point involve lost fishing time as a
result of harm to, or detention of, a vessel, the same
principles apply when the plaintiff loses fishing time because
of wrongful exclusion from fishing grounds. Williams, 643
P.2d at 996 (citing Pacific Steam Whaling Co. v. Alaska
Packers' Ass'n, 72 P. 161 (Cal. 1903)).
As the superior court's findings of fact show, most of the
surf fishermen presented precisely the sort of evidence that
courts generally find sufficient to support an award for lost
fishing profits. The superior court's findings of fact in
regard to the surf fishermen's activity in the East Alsek surf
fishery during the restricted years is particularly thorough.
The court found that every surf fisherman fished at least one
year between 1980 and 1983 during the restricted opening at
the East Alsek river. At least three surf fishermen fished
there during every season between 1980 and 1983.28 Because the
Alsek's surf fishery was more stringently restricted than the
East Alsek's, few surf fishermen worked at the Alsek between
1980 and 1983 and the superior court's findings are less
definite. The superior court did find that ten of the
thirteen surf fishermen actually fished in the Alsek surf in
1980, during the limited time that the fishery was open.29
After 1980, however, it appears that very few surf fishermen
attempted to exploit the restricted open area and time at the
Alsek surf.30
Taking the easiest problem of calculation first, along with
other factors, the superior court could have calculated an
individual's lost catches on days of discriminatory closure in
a given year according to that individual's actual catches on
days when the particular fishery was open in that year. Cf.
Williams, 643 P.2d at 995-96. Upon remand, then, the superior
court shall reexamine the present record and employ each surf
fisherman's individual proof of surf harvest during any given
year as a basis for calculating lost profits for that year.
A closer question is whether the superior court also should
use the harvests of fishermen who worked in the surf from 1980
to 1983 as the basis to calculate lost profits in any given
year for those plaintiffs who did not fish in the surf in that
year. As noted, the harvest that other fishermen take during
a definite period in particular waters may provide a
reasonable basis upon which to determine lost fishing profits
for the same period and waters. See Williams, 643 P.2d at
996. Additionally, we note that some of the surf fishermen
testified that they did not bother to fish the surf at the
Alsek river mouth during the years of closure because they did
not know the area was open to fishing. The superior court's
analysis of this theory of damages is both incomplete and
incorrect.31
We conclude that, upon remand, the superior court must
scrutinize the record for evidence relevant to the lost profit
claims of surf fishermen who chose not to fish in either of
the two discriminatorily closed fisheries because of the
discriminatory closures. If the superior court finds that the
state's discriminatory restrictions constituted a cause of the
choice not to fish at all in a given season or opening, then
the court shall calculate, as appropriate, lost profits
damages for those fishermen based upon the actual catches of
fishermen who worked during the same periods in the same
fishery. Cf. Williams, 643 P.2d at 996; see also West, 628
P.2d at 17 (approving calculation of lost fishing profits
based on nearby catches in same period). The court, if
necessary, may calculate an average actual catch and assign it
to those who did not fish. The court also may consider
evidence tending to show the skill and capability of each
individual in relation to others when making these
calculations.
Finally, we must consider whether the superior court has any
basis on which to calculate lost profits due to the Alsek surf
restrictions during 1983, when no surf fisherman exploited the
area. Initially, we are loath to deny recovery for that
season simply because the state's discriminatory closures were
so effectively daunting to the surf fishermen. To do so would
ignore settled principles of damage measure. See C.
McCormick, Handbook on the Law of Damages 27(b), at 101
(1935) ("Where the defendant's wrong has caused the difficulty
of proof of damage, he cannot complain of the resulting
uncertainty."). More important, however, to do so would
countermand the legislative intent to provide complete relief
for violations of AS 18.80. Loomis, 549 P.2d at 1343 (citing
AS 22.10.020).
As noted, the best proof available on the Alsek surf fishery
comes from 1980, when ten surf fishermen worked there. We
have held that the unlawfully restricted catches of that year
may provide the basis for determining what lawfully restricted
catches would have been that year. We also hold that the
catches of that year may provide the basis for determining
what the catches would have been in 1983.32
B
Under most state antidiscrimination or civil rights
statutes, compensatory damages awards may include actual
damages for mental anguish.33 Such mental anguish damages, as
creatures of statute, are entirely distinct from damages for
emotional distress available under common law tort theories,
which normally require a showing of extreme mental injury.
E.g., Dean v. Municipality of Metropolitan, 708 P.2d 393, 400-
01 (Wash. 1985); Chomicki v. Wittekind, 381 N.W.2d 561, 566-67
(Wis. App. 1985) (noting that plaintiff had not satisfied
common-law tort requirement of "extreme disabling emotional
response" but affirming award of mental anguish damages
because plaintiff brought action under state antidiscrimi
nation statute, not under common-law theory).
Examination of the Human Rights Act and of our cases
interpreting the Act make it clear that damages for mental
anguish are available in Alaska as a form of compensatory
damages under AS 22.10.020. Under the Act, the Commission's
powers to remedy violations of AS 18.80 are quite specific.
In all cases, the Commission may "order the person to refrain
from engaging in the discriminatory conduct." AS
18.80.130(a). In employment discrimination cases, the
Commission may order "any appropriate relief, including but
not limited to" reinstatement and backpay. AS
18.80.130(a)(1). And in housing discrimination cases, the
Commission may order the sale, lease or rental of housing to
the complainant and, also, "may award actual damages." AS
18.80.130(a)(2). In all cases, however, the Commission's
power to award money is limited to special damages or to money
payments incident to equitable relief,34 that is, to damages
for "direct, calculable pecuniary loss, such as back pay or
housing expenses." McDaniel v. Cory, 631 P.2d 82, 88 (Alaska
1981).
In contrast, AS 22.10.020(i) (formerly subdivision (c)),
provides that the superior court "may enjoin any act, practice
or policy which is illegal under AS 18.80 . . . and may order
any other relief, including the payment of money, that is
appropriate." (Emphasis added.) Plainly, the remedial powers
that this statute grants to the superior court are broader
than the specific powers that AS 18.80.130 grants to the
Commission. Indeed, the extraordinary difference between
remedies available before the Commission and remedies
available before the court provides the only rational reason
for affording complainants' new action in superior court after
they have prevailed before the Commission. See, e.g., AS
18.80.145.
We held in McDaniel that the Commission could not award
damages for pain and suffering. McDaniel, 631 P.2d at 86-88.
We then added, "should the complainant wish to recover damages
from the respondent, recourse to the courts is always
available." Id. at 88. In Loomis, we explained that when
complainants took recourse in the courts for violations of AS
18.80, among the full range of remedies available to them
would be awards of general compensatory damages. Loomis, 549
P.2d at 1343. We wrote:
The language of [AS 22.10.020(c)] is
clearly intended to provide a litigant
complete relief in an appropriate case. In
view of the strong statement of purpose in
enacting AS 18.80, and its avowed
determination to protect the civil rights of
all Alaska citizens, we believe that the
legislature intended to put as many "teeth"
into this law as possible. We fail to see
how, consistent with that purpose and intent,
the legislature could have contemplated a
statutory scheme that would not have included
the right to recover damages. Otherwise,
there would be many cases in which no
meaningful relief would be available to the
injured party, the one whose civil rights
have been violated and whom the law seeks to
protect. We believe that the broad language
of AS 22.10.020(c) indicates a legislative
intent to authorize an award of compensatory
and punitive damages for violations of AS
18.80, in addition to the equitable remedies
such as enjoining illegal employment activi
ties and ordering back pay as a form of resti
tution.
Id. (footnotes omitted). In Loomis, we also indicated in dicta
that among the compensatory damages available for violations
of AS 18.80 are damages "to redress mental suffering and other
intangible injuries." Id. at 1344 n.12 (quoting Comment,
Implying Punitive Damages in Employment Discrimination Cases,
9 Harv. C.R.-C.L. L. Rev. 325, 336 (1974)). We apply that
rule today. We also clarify it.
As we noted in McDaniel, some states permit the adminis
trative commissions charged with enforcing civil rights
statutes to award compensatory damages. McDaniel, 631 P.2d at
87-88. Other states permit only the courts to award such
damages. See id. at 88 (citing Iron Workers Local No. 67 v.
Hart, 191 N.W.2d 758, 767-68 (Iowa 1971)). Generally,
however, all of these states limit recovery of compensatory
damages for mental anguish to "actual damages"-- that is, to
"all those damages directly and naturally resulting, in the
ordinary course of events, from the injury in question."
Mitchell v. Seaboard Sys. R.R., 883 F.2d 451, 453 (6th Cir.
1989); accord Brewster v. Martin Marietta Aluminum Sales,
Inc., 378 N.W.2d 558, 569 (Mich. App. 1985).
We agree that compensatory damages for mental anguish caused
by discrimination must be limited to actual damages. We also
stress that such damages are not to be presumed. See State v.
Haley, 687 P.2d 305, 320-21 (Alaska 1984), (presumptive
damages are not available for violations of civil rights);
Cullen v. Nassau County Civil Serv. Comm'n, 442 N.Y.S.2d 470,
473 (N.Y. 1981) (no mental anguish damages "solely upon
finding that a discriminatory act occurred"). A complainant's
own testimony may establish the fact and the quantum of
damages. Cullen, 442 N.Y.S.2d at 473. But the amount of
mental anguish damages assessed must specifically compensate
only the injury proved.35 Id.
The surf fishermen's complaint in this case requested
general compensatory damages, and the surf fishermen's proof
at trial included evidence that the state's violation of AS
18.80.255(1) had caused at least some of the surf fishermen
mental anguish. Walter Johnson formally presented evidence
that he suffered emotional injury as a result of the state's
actions. Other surf fishermen less formally offered evidence
that they suffered emotional injury. For example, Sheldon
James testified that the closure of the Alsek surf fishery in
1980 surprised, angered, and upset him. He also testified
that circumstances surrounding the surf closure -- for
example, the more lenient restrictions on inriver fishermen
and the insulting manner in which Alex Brogle explained the
state's action to the surf fishermen -- convinced him of the
racial animus behind the restrictions. Our examination of the
record reveals similar testimony from several of the surf
fishermen. Yet, the superior court failed to address the
question of actual mental anguish damages.
We are mindful that the surf fishermen have not extensively,
perhaps even competently, briefed the question of mental
anguish damages.36 Nonetheless, we consider their general
point on appeal challenging the superior court's damage award,
in combination with the argument in their brief, sufficient to
warrant our ruling on the issue. See Ratcliff v. Security
Nat'l Bank, 670 P.2d 1139, 1141 n.4 (Alaska 1983). On the
other hand, the surf fishermen do not argue that the superior
court denied them an opportunity to introduce evidence of
mental anguish injury. And, as noted, we find that the surf
fishermen did adduce substantial evidence of such injury at
the bench trial. Hence, we do not remand for a new trial on
this question. Rather, upon remand, the superior court shall
determine from the present record whether or not any of the
plaintiffs tried the issue of mental anguish damages and, if
so, whether such damages were proven.
The judgment of the superior court is AFFIRMED in part,
REVERSED in part and MODIFIED in part, and this case is
REMANDED for a redetermination of damages based on the present
record.
_______________________________
1. White fishermen who work in the region do not fish in
the surf. The sole white fisherman identified as ever having
fished in the surf in the Yakutat region was Dolph Hensley,
whose wife was a Yakutat native. Tlingit fishermen testified
that Hensley had been accepted as a member of the Native
community.
2. Nominally, the Department of Public Safety,
Division of Fish and Wildlife Protection, is in charge of law
enforcement, including enforcement of fishing regulations, in
the Alsek and East Alsek area. Unavailability of personnel,
however, has constrained the department to forgo some
enforcement responsibilities and to delegate others to the
Department of Fish & Game officials who work on-site at the
fisheries during salmon season.
3. See generally Kenai Peninsula Fisherman's Coop. Ass'n
v. State, 628 P.2d 897, 902-03 (Alaska 1981).
4. AS 16.05.251.
5. See AS 16.05.050; AS 16.05.060; see also AS 44.17.
005; 44.17.030.
6. A decline in harvests at other fisheries in the
region was one reason Yakutat fishermen turned to the Alsek
and East Alsek area in the 1970s. Another reason for the
increase in surf fishermen was an improvement in equipment.
There is no road from Yakutat to the fishery, so the Tlingit
surf fishermen must make the fifty-mile open ocean trip south
in their skiffs. Most surf fishermen only somewhat recently
obtained the sort of boats and powerful motors that make the
journey with ease. The improved equipment also enhanced the
surf fishermen's effectiveness in the difficult Alsek and East
Alsek surf.
As in prior years, the inriver fishermen employed threats of
violence, including gunshots, to insure that none of new the
surf fishermen moved upstream. The inriver fishermen also
apparently hoped that their belligerence would reverse the
general increase of competition in the area by chasing some of
the new surf fishermen away from the area entirely.
7. A surge in activity in 1973 and 1974 was probably due
to anticipation of the limited entry program. The Department
responded to the 1974 increase by limiting open fishing time
from four to two days per week. Coincidentally, the device
Canadian regulators used to measure escapement on the Alsek --
a fish "weir"-- was not in operation until 1976. Thus, the
Department did not have detailed escapement data available for
a predictive analysis of the 1979 salmon run on the Alsek.
Instead, the Department's historical data mainly consisted of
records showing the number of fishermen on the Alsek in 1974
and the size of the catch that year.
8. The Board did not widely advertise the meeting, nor
did the Board intend the meeting to be a public hearing on the
immediate problem of regulating the Alsek fishery.
Nonetheless, the question of regulating fishing on the Alsek
for the 1980 season dominated the public meeting.
9. Neither the record nor the briefs explain why the
superior court action remained suspended while the Commission
proceedings ran their course.
10. The state also has appealed the superior court's use
of a disparate impact model of discrimination in the case, and
the superior court's refusal to enter directed verdict for the
state. Because of our disposition of other issues in the
appeal, we do not reach either of these points in the cross
appeal. As we note below, however, we in no way intend to
endorse either the Commission's or the superior court's use of
the disparate impact model of discrimination in this case.
See infra note 22.
11. A grant of partial summary judgment is always review
able on appeal when final judgment in a case comes after
trial. E.g., Currington v. Johnson, 685 P.2d 73, 76-78
(Alaska 1984). Denials of summary judgment also may be
reviewable on appeal when final judgment in a case comes after
trial, but only if the facts applicable to the summary
judgment ruling were not in dispute and the basis of the
ruling is a matter of law. Kentucky, Trans. Cabinet, Bureau
of Highways v. Leneave, 751 S.W.2d 36, 37 (Ky. App. 1988);
Shisler v. Fireman's Fund Ins. Co., 741 P.2d 529, 532 (Or.
App. 1987); see also City of Fairbanks v. Schaible, 375 P.2d
201, 206 (Alaska 1962); City of Fairbanks v. Schaible, 352
P.2d 129, 130-31 (Alaska 1960); see generally Annotation,
Reviewability of Order Denying Motion for Summary Judgment, 15
A.L.R.3d 899, 902, 922-24 (1967).
12. The state also argues that a fourth statute, AS
44.62.300, preempts any other action against the state's use
of its regulatory powers. We find no merit in this argument.
AS 44.62.300 establishes standing for any "interested person"
to "get a judicial declaration on the validity of a regulation
by bringing an action for declaratory relief in the superior
court." AS 44.62.300. First, the Department's emergency
order in 1980 "is not subject to the Administrative Procedure
Act (AS 44.62)." AS 16.05.060(c). Second, the Board's
regulations in subsequent years presumably are subject to chal
lenge under AS 44.62.300. Such a challenge, however, might
have alleged that the Board's regulations were invalid because
they violated AS 18.80.255. See AS 44.62.020 ("To be
effective, each regulation adopted must be within the scope of
authority conferred and in accordance with standards
prescribed by other provisions of law.") (emphasis added).
The surf fishermen did not make such a challenge, preferring
instead to seek the remedies for violation of AS 18.80.255
that the legislature explicitly has made available under AS
22.10.020(i). The state does not argue that the legislature
impermissibly provided concurrent bases for challenging
illegal state discrimination. Thus, the state's invocation of
AS 44.62.300 is irrelevant to this case.
13. In other words, an action brought under AS 18.80 is
not subject to the same rules as one brought under AS
09.50.250.
14. The superior court determined this legal issue by
denying the surf fishermen's motion for summary judgment. We
review the superior court's decision on this point de novo.
See supra note 11.
15. Another statute addressing the question of preclusion
provides that "[t]he acquittal of a person by the commission
or a court of competent jurisdiction of any alleged violation
of this chapter is a bar to any other action, civil or
criminal, based on the same act or omission." AS 18.80.280.
This statute establishes a type of claim preclusive effect for
particular decisions under AS 18.80 adverse to the claimants
or plaintiffs. We note that no statute specifically creates
claim preclusive effects when the complainants or plaintiffs
prevail. Indeed, when (as in this case) claimants before the
Commission prevail, their claim does not merge into the
favorable judgment. Rather, they are still free to bring
subsequent action under AS 22.10.020(i) (formerly (c)) in
superior court, because the remedies available in court are
different than those available before the Commission. See
Restatement (Second) of Judgments 83(3) (1982).
16. The state directs our attention to subdivision (d) of AS
18.80.145, which provides that "[i]f the commission does not
intervene or file a certificate [i.e., request court deferral]
and conduct a hearing as provided in this section, the court
has complete jurisdiction of the case, notwithstanding the
provisions of AS 18.80.280." The state argues that this
language limits the preclusive effect of an agency decision to
cases in which the Commission intervenes or requests superior
court deferral. What AS 18.80.145(d), taken together with AS
18.80.280, means is that where the Commission does not
intervene but acquits an alleged violator, that acquittal
should not be given preclusive effect in court. This
provision is favorable to victims of discrimination, as they
are given a second chance in court. However, it would be
reading too much into the term "complete jurisdiction" to
infer the converse proposition that those found guilty by the
Commission are also to be given a second chance in court.
Issue preclusion, or more broadly, res judicata, is applicable
only where there is dual jurisdiction, that is where two
separate forums have complete jurisdiction. Where only one
forum has the power to act the term "exclusive jurisdiction"
is used. We therefore conclude that 145(d) does not mean
that issue preclusion is inapplicable to cases where the
Commission does not intervene under 145(a) but deter-mines
that discrimination has taken place.
17. The essential elements of adjudication include
adequate notice to persons to be bound by the adjudication,
the parties' rights to present and rebut evidence and
argument, a formulation of issues of law and fact in terms of
specific parties and specific transactions, a rule of finality
specifying the point in the proceeding when presentations end
and a final decision is rendered, and any other procedural
elements necessary for a conclusive determination of the
matter in question. Restatement (Second) of Judgments 83(2)
(1982).
18. We also note that the statute in the Human Rights Act
that addresses the issue preclusive effect of some Commission
decisions states that parties shall be bound "as to all issues
resolved in the hearing." AS 18.80.145(b) (emphasis added).
The statute makes no distinction between issues of law and
issues of fact.
19. The superior court, in contrast, found that Alex
Brogle's racism did not significantly contribute to the state
agencies' official actions.
20. See, e.g., 6 AAC 30.415 (subpoena power); 6 AAC
30.430 (requirement of notice to parties); 6 AAC 30.440
(hearing procedures); 6 AAC 30.460 (rules of evidence); 6 AAC
30.470 (requirement of findings of fact and conclusions of
law); 6 AAC 30.480 (provisions for final Commission order);
see also 6 AAC 30.510-590 (discovery procedures).
21. The state does perfunctorily note that the Board of
Fisheries was not originally named as a respondent in the pro
ceedings before the Commission. The Board of Fisheries,
however, was joined in the action before the hearing officer
rendered her decision. Moreover, the record indicates that
the state acquiesced to joinder of the Board of Fisheries
because the joinder posed no threat of prejudice. And
finally, the hearing officer's decision specifically bound the
Board of Fisheries. The Board of Fisheries thus appears to
have been a party to the Commission proceedings for purposes
of application of issue preclusion. The state makes no
express argument to the contrary.
22. Our decision on this point renders unnecessary a
review of the state's argument that the superior court erred
by analyzing this case under the disparate impact model. Our
decision that the Commission's legal determinations should
have received preclusive effect, however, in no way endorses
either the Commission's conclusion or the superior court's
conclusion that the disparate impact model of discrimination
correctly applied in this case.
First, we have never approved the use of the disparate
impact model outside the context of employment discrimination.
See Thomas v. Anchorage Tel. Util., 741 P.2d 618, 628-29
(Alaska 1987) (adopting disparate impact model for cases
arising under AS 18.80.220). We recognize that courts and
legislatures carefully have extended the use of the disparate
impact model beyond the employment discrimination context.
See generally Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
666 & n.9 (1989) (Stevens, J., dissenting) (listing examples
of congressional extension of disparate impact model); Maltz,
The Expansion of the Role of the Effects Test in
Antidiscrimination Law: A Critical Analysis, 59 Neb. L. Rev.
345, 357-62 (1980). But courts and legislatures also have
limited use of the model. E.g., General Building Contractors
Ass'n v. Pennsylvania, 458 U.S. 375, 389-91 (1982); Larry v.
White, 929 F.2d 206, 209 & n.8 (5th Cir. 1991); Minn. Stat.
Ann. 363.03(11) (West 1991) (state human rights act adopting
use of disparate impact model for employment discrimination
only). The issue, then, is problematic, and one that deserves
much more consideration than either the Commission or the
superior court afforded it in this case.
Second, on the specific facts of this case, the disparate
impact model appears to have been invoked inappropriately.
This was the rarest of all discrimination cases: a case in
which the complainants offered strong direct evidence of
discriminatory intent. See Wise v. Mead Corp., 614 F. Supp.
1131, 1134 (M.D. Ga. 1985) ("It is difficult -- if not
impossible -- for a plaintiff to produce direct evidence of
discriminatory intent."). Cases in which the plaintiff
adduces direct evidence of motive invoke an entirely different
analysis than other cases. A defendant in such a case can
only successfully defend by showing by a preponderance of the
evidence that the same decision would have been reached even
without the discrimination factor. EEOC v. Beverage Canners,
Inc., 897 F.2d 1967, 1971 (11th Cir. 1990); Fields v. Clark
Univ., 817 F.2d 931, 936 (1st Cir. 1987). This analysis -- or
model -- for cases in which direct evidence of discrimination
is present finds its greatest development in employment
discrimination cases. E.g., Price Waterhouse v. Hopkins, 490
U.S. 228 (1989). However, courts actually imported the model
from outside the employment discrimination context. See,
e.g., Fields, 817 F.2d at 936; see also Arlington Heights v.
Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977)
(under constitutional version of the model, direct proof of
discriminatory motive invokes strict scrutiny). Clearly,
then, use of the direct evidence model is not limited in the
same way that use of the disparate impact model may be
limited.
23. In addition to their cause of action under the Human
Rights Act, the surf fishermen attempted to assert in the
superior court causes of action for damages under the state
and federal constitutions. The superior court held that under
the circumstances of this case, no implied constitutional
cause of action was available. The surf fishermen have
appealed only the superior court's ruling on their state
constitutional claim. We agree with the superior court that
the surf fishermen have not shown why an implied constitu
tional cause of action for damages against the state is either
necessary or appropriate in this case. Vest v. Schafer, 757
P.2d 588, 598 & n.38 (Alaska 1988); see also King v. Alaska
State Hous. Auth., 633 P.2d 256, 260-61 & n.5 (Alaska 1981).
24. See Williams, 643 P.2d at 995 (detention of plain
tiff's boat for part of the fishing season left only question
of reasonable basis for calculation of damages); West v.
Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 17 (Alaska 1981).
25. The Department of Fish and Game's records first
separated surf and inriver harvests in 1979.
26. One of the superior court's objections to the surf
fishermen's second estimate of total damage was that the
expert included no account of the plaintiff's mitigation of
damages in 1980-83. The court's application of the law was
clearly wrong on this point. It is true that "a wronged party
must use reasonable efforts to avoid the consequences of
injury done by another." University of Alaska v. Chauvin, 521
P.2d 1234, 1239 (Alaska 1974); see also Alaska Children's
Services, 677 P.2d at 902; West, 628 P.2d at 18. However, the
question of mitigation is entirely independent of the damages
question. See Alaska Children's Services, 677 P.2d at 902.
In this case, analysis of the surf fishermen's proof of
damages -- both in fact and in extent -- is the first step.
Only after determining damages does the court reduce the
damages amount according to the state's proof of mitigation or
failure to mitigate. See id. at 901-02.
27. One important condition in this case is the need for
fishing restrictions. No one disputes that the state had good
reason to restrict fishing in general on the Alsek and East
Alsek after 1979, so long as the restrictions were not
illegally discriminatory. For the purposes of a reasonable
calculation, then, the superior court may assume that a
nondiscriminatory surf restriction would have paralleled the
inriver restriction. In other words, the superior court
feasibly may calculate lost profits according to what the surf
fishermen would have made if the surf had been open for them
to fish during the same periods that the inriver sites were
open.
28. The three are Sheldon James, Daryl James, and Myron
Johnson.
29. The superior court found that Russell Bogren and Eli
Hanlon did not fish in the surf at the Alsek in 1980. While
evidence as to Bogren's presence at the Alsek in 1980 was
conflicting, we cannot say that the court clearly erred in
deciding as it did.
30. The court found that Sheldon James fished the Alsek
surf in 1980-82, and that his brother Daryl "fished essen
tially the same openings."
31. As an example of an incorrect inquiry, when address
ing plaintiff Daryl James' claim of lost profits the superior
court wrote: "In 1982 and 1983, Daryl James did not fish the
Alsek and the preponderance of the evidence does not show that
he would have made more than the expenses he did not incur by
staying away." The correct inquiry should have been whether
James would have made more than his expenses if the surf fish
eries had not been discrimina-torily restricted.
The superior court also generally overlooked the sig
nificance of a plaintiff's choice not to waste his time trying
to fish the restricted waters. For example, when addressing
Clarence and Bill Milton's claim of lost profits, the superior
court simply wrote: "They did not sell any Alsek fish after
1980, concentrating instead on the Situk and East [Alsek]
rivers in 1981 and 1982. From this record of catches, the
court cannot find with reasonable certainty that the Miltons
were damaged as a result of the surf closure at the Alsek
River." The superior court here obviously ignores the
possible methods of calculation available.
32. Any such calculation, of course, is also subject to
all qualifying principles that we have mentioned in connection
with the measure of damages at the East Alsek surf fishery or
at the Alsek surf fishery in 1980-82.
33. E.g., Mitchell v. Seaboard Sys. R.R., 883 F.2d 451,
453 (6th Cir. 1989) (statutory provision for "actual damages"
authorized compensatory damages for mental anguish) (Kentucky
law); Ridenour v. Montgomery Ward & Co., 786 F.2d 867, 869
(8th Cir. 1986) (same) (Iowa law); Cripps v. United Biscuit of
Great Britain, 732 F. Supp. 844, 846-47 (E.D. Tenn. 1989)
(same) (Tennessee law); Brewster v. Martin Marietta Aluminum
Sales, Inc., 378 N.W.2d 558, 568-69 (Mich. App. 1985) (mental
anguish damages available in court action); State ex rel.
Cooper v. Mower County Social Serv., 434 N.W.2d 494, 499-500
(Minn. App. 1989) (administrative agency empowered by statute
to award actual damages and mental anguish damages); Andersen
v. Exxon Co., 446 A.2d 486, 496 (N.J. 1982) (affirming
administrative civil rights agency award of mental anguish
damages); State, Div. of Human Rights v. County of Onondaga
Sheriff's Dep't, 513 N.Y.S.2d 68 (App. Div. 1987) (affirming
administrative human rights agency award of mental anguish
damages but reducing award by 50%), aff'd 524 N.E.2d 123 (N.Y.
1988); Dean v. Municipality of Metropolitan, 708 P.2d 393, 400-
01 (Wash. 1985) (affirming jury instruction that included
mental anguish as aspect of "actual damages"available under
state antidiscrimination statute); Chomicki v. Wittekind, 381
N.W.2d 561, 566-67 (Wis. App. 1985) (affirming jury award of
mental anguish damages under state antidiscrimination law and
relying, in part, on availability of mental anguish damages in
federal actions under the Fair Housing Act and the Civil
Rights Act of 1866).
34. See Loomis, 549 P.2d at 1343 & n.9 (noting that
federal courts "have characterized back pay as an integral
part of an equitable remedy, a form of restitution").
35. The damage awards for mental anguish, stripped of all
punitive component, generally are quite moderate in amount.
E.g., Mitchell, 883 F.2d at 453-54 (affirming award of $7,500
mental anguish damages under state law where plaintiff drove
20,000 extra miles per year to work at remote locations in an
attempt to avoid a racially-biased supervisor); State ex rel.
Cooper v. Mower County Social Serv., 434 N.W.2d 494, 499
(Minn. App. 1989) (affirming "administrative law judge's
$2,000 award for mental anguish and suffering . . . based on
findings 'showing the turmoil experienced by [complainant]
after her [discriminatory] rejection for employment'");
Department of Human Rights v. Spiten, 424 N.W.2d 815, 819
(Minn. App. 1988) (affirming award of $3000 mental anguish
damages to woman and her two children for the pain they
suffered when refused an apartment because of their race);
Andersen, 446 A.2d at 496 (affirming "moderate $500 award for
emotional distress"plaintiff suffered when refused a job
because of his disability); Gray v. Serruto Builders, Inc.,
265 A.2d 404, 407, 415-16 (N.J. Super. Ct. 1970) (noting that
the plaintiff, a man denied an apartment because of his race,
was a person of substantial accomplishment and personal
strength, and awarding only $500 mental anguish damages); In
re Anchor Motor Freight, Inc., 500 N.Y.S.2d 800, 801 (N.Y.
App. Div. 1986) (affirming administrative agency award of
$5,000 mental anguish damages where employer ignored Jewish
employee's request to have days off for Sabbath and Holy Days
and ordered him to work); Board of Education v. McCall, 485
N.Y.S.2d 357, 358 (N.Y. App. Div. 1985) (affirming
administrative agency award of $5,000 mental anguish award
where employer discriminatorily denied complainant promotion
because of gender); Weiss v. State, Human Rights Appeal Bd.,
477 N.Y.S.2d 342, 345 (N.Y. App. Div. 1984) (holding that
administrative agency abused discretion by not awarding mental
anguish damages where employer discriminatorily denied
complainant promotion because of gender and awarding $1,000);
Chomicki v. Wittekind, 381 N.W.2d 561, 565-67 (Wis. App. 1985)
(affirming awards of $1,500 economic damages, $7,500 emotional
distress damages, and $10,000 punitive damages where landlord
treated tenant "as a sexual chattel . . . and forced
[plaintiff] to relocate in middle of winter along with her
young children").
In fact, the only relatively large award for mental anguish
damages under a state antidiscrimination law that we have
found was reduced by 50% on appeal because the appellate court
found it "grossly excessive." County of Onondaga Sheriff's
Dep't, 513 N.Y.S.2d at 68 (reducing award of $30,000 mental
anguish damages to $15,000 where record did not reveal how
long complainant suffered depression or other effects after
her discriminatory discharge from employment).
36. The surf fishermen argue that the trial court should
have awarded them damages for "lost heritage." The surf
fishermen, however, articulate what amounts to a presumptive
basis for measuring such an award. The surf fishermen are
Native Alaskans denied access to the Alsek and East Alsek
surf, and surf fishing, according to the Commission decision
in the case, is part of the native heritage. Those facts
alone, however, do not establish that the surf fishermen
suffered "lost heritage"injury. Insofar as any individual
plaintiff has shown that part of the mental anguish he
suffered was related to his sense of "lost heritage," such
loss might enter into the trial court's consideration of
actual mental anguish damages. The superior court, however,
properly will ignore the surf fishermen's aggregate claim for
lost heritage damages. See Haley, 687 P.2d at 320-21.
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