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Thoma v. Hickel (8/15/97), 947 P 2d 816
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.
THE SUPREME COURT OF THE STATE OF ALASKA
THEODORE P. THOMA, )
) Supreme Court No. S-6273
) Superior Court No.
v. ) 1JU-93-692 CI
WALTER J. HICKEL, ) O P I N I O N
Appellee. ) [No. 4863 - August 15, 1997]
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
J. Justin Ripley, Judge.
Appearances: James McGowan, Sitka, Richard
Friedman, John A. Bernitz, Friedman, Rubin & White, Anchorage, for
Appellant. John B. Gaguine, Assistant Attorney General, Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Rabinowitz, Matthews, Eastaugh,
Justices, and Carpeneti, Justice pro tem. [Compton, Chief Justice,
MATTHEWS, Justice, joined by EASTAUGH,
Justice, as to parts I, II, III.B, III.C., and IV; and by
RABINOWITZ, Justice, and CARPENETI, Justice pro tem, as to parts I,
III.A, III.C, and IV.
CARPENETI, Justice pro tem, dissenting in
part, joined by RABINOWITZ, Justice.
EASTAUGH, Justice, dissenting in part.
Theodore P. (Chip) Thoma sued Governor Walter J. Hickel,
alleging that Hickel in concert with others had engaged in a smear
campaign against Thoma, that the campaign improperly used criminal
justice system records, and that the campaign was conducted in
retaliation for Thoma's protected political activity seeking the
removal of Governor Hickel. The superior court ruled that Hickel
was protected by the doctrine of public executive immunity and
granted him summary judgment. Subsequently, the court awarded
Hickel $77,865.50 in attorney's fees.
In reviewing grants of summary judgment the facts are to
be viewed in the light most favorable to the losing party, and
reasonable inferences are to be resolved in favor of the losing
party. [Fn. 1] Our recitation of the facts in this case is made
from that perspective.
Thoma, who describes himself as a political gadfly, filed
an ethics complaint against Governor Hickel on May 3, 1991, which
alleged that Hickel was attempting to use his official position for
personal financial gain. Hickel discussed with his aides ways of
retaliating against Thoma. They decided that Thoma's criminal
record should be publicized.
The record of the Alaska Public Safety Information
Network (APSIN), a computer system which contains comprehensive
criminal records, indicates that inquiries were made concerning
Thoma's criminal history on May 7 and May 9, 1991. The record does
not show who made the inquiries. A printout of Thoma's criminal
record was circulated among the governor's aides.
After Thoma filed the ethics complaint against Hickel, he
involved himself in an effort to recall the governor. In September
of 1991, the Alaska chapter of the Sierra Club endorsed the recall
effort. On September 20, 1991, Governor Hickel's press secretary,
Eric Rehmann, sent a letter to the Alaska representative of the
Sierra Club which stated in part:
By joining the recall effort, you have aligned
yourself with disreputable characters like Chip Thoma. Mr. Thoma,
who proclaims himself to be an environmental activist, is a
convicted felon who has spent time in jail for possession of
cocaine. He has been found guilty of driving while intoxicated
four times in a ten-year period. This is hardly a pillar of our
community with whom your organization should wrap themselves
Thoma's convictions are a matter of public record. The
court records in Juneau show two DWI convictions in 1979 and a 1985
cocaine conviction. Thoma was convicted of two additional DWIs in
Oregon. While the out-of-state convictions are public, they are
not reflected in the Alaska court records. The convictions are,
however, in Thoma's APSIN file. Certain members of Governor
Hickel's staff had access to the APSIN file. Thus, there is
inferential evidence that the APSIN file was the source of the
information contained in Rehmann's letter concerning Thoma's four
Thoma sued Hickel in the superior court in Juneau,
asserting claims under 42 U.S.C. sec. 1983 (deprivation of federal
rights), public policy violations under state law, and interference
with state and federal constitutional rights. Compensatory damages
for reputational losses and emotional distress were sought and a
claim for punitive damages was asserted.
After Thoma took the deposition of one of the governor's
former aides, Hickel moved for summary judgment, arguing that the
claims against him should be dismissed under the doctrine of public
executive immunity. Thoma made a cross-motion for partial summary
judgment on Hickel's immunity defense. The superior court ruled in
I. Public Executive Immunity from Tort Suits
Under Alaska law, public officials in the executive
departments of government have either absolute or qualified
immunity from tort suits for discretionary acts committed within
the scope of their authority. Absolute immunity is self-descrip-
tive. Qualified immunity protects an official whose acts "are done
in good faith and are not malicious or corrupt." Aspen Exploration
Corp. v. Sheffield, 739 P.2d 150, 158 (Alaska 1987). Immunity is
determined to be absolute, or merely qualified, based on the
consideration of factors which are designed to "strike a balance
between the public's interest in efficient, unflinching leadership
[which is thought to be furthered by absolute immunity] and the
interests of maliciously injured parties [which are redressable
where an immunity is merely qualified]." Id. at 159. The factors
which should be considered in striking this balance are:
(1) The nature and importance of the
function that the officer performed to the administration of
government (i.e. the importance to the public that this function be
performed; that it be performed correctly; that it be performed
according to the best judgment of the officer unimpaired by
(2) The likelihood that the officer will
be subjected to frequent accusations of
wrongful motives and how easily the officer can defend against
these allegations; and
(3) The availability to the injured party
of other remedies or other forms of relief (i.e. whether the
injured party can obtain some other kind of judicial review of the
correctness or validity of the officer's action).
Id. at 159-160.
In applying these factors in Aspen Exploration, we found
that absolute immunity protected Governor Sheffield from claims
that he had wrongfully ordered the State Department of Natural
Resources to reject the plaintiff's applications for offshore
prospecting permits. The governor "must feel unimpaired to direct
[state officers] in the way he determines best . . . particularly
. . . where the state's natural resources are concerned . . . ."
Id. at 160. Further, allowing inquiry into motive concerning
rejection of a permit application would entail a lengthy and
disruptive trial. Moreover, a well-marked path through
administrative and judicial channels had been established as a
remedy for unsuccessful permit applicants. Id. at 161-162. By
contrast, we held that the plaintiff's claim for defamation was
merely subject to qualified immunity. "[H]olding the governor to
a standard of good faith in his public statements more than
adequately protects the public interest in undeterred leadership,"
id. at 160-61; permitting inquiry into motive in defamation cases
would not necessitate lengthy trials, id. at 161; and there are no
alternative remedies available to one who has been defamed. Id. at
Federal law also recognizes absolute and qualified
official immunity from tort suits. Certain officials having
special functions are entitled to absolute immunity for all acts
within the scope of their protected functions. Prosecutors, judges
(including executive officers performing adjudicative functions),
and legislators fall within this category. Harlow v. Fitzgerald,
457 U.S. 800, 807 (1981). In addition, the President of the United
States has status-based absolute immunity. Nixon v. Fitzgerald,
457 U.S. 731 (1981). Most executive officers, however, have
qualified immunity. Qualified immunity under federal law protects
officials except where it is "clearly established"as of the time
of the acts complained of that the acts violated the plaintiff's
rights. Harlow, 457 U.S. at 818.
II. Thoma Has Not Asserted a Valid Federal Claim
One of the purposes of qualified immunity is to protect
public officials from the expense of litigation. A.C.L.U. of
Maryland v. Wicomico County, 999 F.2d 780 (4th Cir. 1993).
Therefore, in a lawsuit in which qualified immunity is claimed,
questions of immunity should be ruled upon at an early stage.
Since, under federal law, the existence of qualified immunity
depends on whether there is an underlying statutory or constitu-
tional violation which can be described as clear, the first
question that logically presents itself in such cases is whether
the allegations of the complaint encompass any federal
constitutional or statutory violations. As the Fourth Circuit said
in A.C.L.U. of Maryland:
In order to weed out insubstantial
section 1983 claims without resort to a trial or extensive pretrial
proceedings, a trial court confronted with an assertion of
qualified immunity should first determine whether the plaintiff has
properly asserted a constitutional violation. Siegert v. Gilley,
500 U.S. 226 (1991). As a panel of the Eleventh Circuit has
The district courts should
first focus on whether the plaintiff has established a
constitutional violation before determining whether material issues
of fact are present. No material issues can be in dispute where
the plaintiff's evidence fails to establish a constitutional viola-
Bennett v. Parker, 898 F.2d 1530, 1534 (11th
Cir. ). . . .
A preliminary evaluation of the plain-
tiff's allegations may resolve the immunity
question at an early point in the litigation. See Anderson [v.
Creighton], 483 U.S. [635,] 646 n.6 (encouraging resolution of such
claims at the "earliest possible stage"). If the plaintiff's
allegations fail to establish a constitutional claim, the defendant
is entitled to dismissal on the basis of qualified immunity, or, of
course, under Federal Rule of Civil Procedure 12(b)(6).
Id. at 784.
Guided by this, we now consider whether Thoma has
asserted any cognizable federal claims. On appeal Thoma limits his
federal claims to those brought under 42 U.S.C. sec. 1983 (1994).
This section provides in pertinent part:
Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, priv-
ileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
No substantive rights are created by section 1983. It merely
provides a procedure by which rights already guaranteed by the
federal constitution or a federal statute may be vindicated. E.g.,
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (Section 1983 is
"not itself a source of substantive rights but a method for
vindicating federal rights elsewhere conferred by those parts of
the United States Constitution and federal statutes that it
describes."). Originally part of the Civil Rights Act of 1871,
section 1983 was enacted to enforce the provisions of the
Fourteenth Amendment in response to the need to protect the
constitutional rights of black citizens in the South following the
Civil War. However, in line with its plain language, section 1983
has been interpreted to extend beyond racial discrimination and to
apply to violations of any substantive rights secured by the
federal constitution or federal laws. [Fn. 2]
A. The Retaliation Claim
Thoma claims that people have a constitutional right to
be free from acts of retaliation by officials made in response to
speech or other activities protected by the First Amendment to the
Constitution. There is much support for this proposition. For
example, in Mt. Healthy City School District v. Doyle, 429 U.S. 274
(1977), a non-tenured teacher was not rehired because, as he
claimed, he had publicly criticized the school administration. The
Supreme Court held that despite the fact that the teacher "could
have been discharged for no reason whatever, and had no constitu-
tional right to a hearing prior to the decision not to rehire him
. . . he may nonetheless establish a claim to reinstatement if the
decision not to rehire him was made by reason of his exercise of
constitutionally protected First Amendment freedoms." Id. at 283.
In Gibson v. United States, 781 F.2d 1334 (9th Cir.
1986), the court held that an allegation that police helicopters
frequently flew low over plaintiff's house in order to inhibit the
plaintiff's nonviolent but confrontational political activities
stated a claim under section 1983:
State action designed to retaliate against and
chill political expression strikes at the heart of the First
Amendment. . . . Although plaintiffs may not recover merely on the
basis of a speculative "chill"due to generalized and legitimate
law enforcement initiatives . . . they have alleged discreet acts
of police surveillance and intimidation directed solely at
silencing them. Hence, we conclude that they have stated a
judicially cognizable claim of "specific . . . objective harm"
arising from the violation of their First Amendment rights.
Id. at 1338 (citations omitted).
Another example is found in Soranno's Gasco, Inc. v.
Morgan, 874 F.2d 1310 (9th Cir. 1989). Gasco, a fuel distributor,
criticized the county air pollution control district publicly and
filed suit against the district challenging various air pollution
regulations. The district suspended certain permits held by Gasco
and wrote letters to Gasco's customers telling them that Gasco
could not deliver gasoline to them while he was under suspension.
The district court dismissed Gasco's section 1983 claim, concluding
that Gasco had no constitutionally protected property interest in
the permits. Id. at 1314. The Ninth Circuit reversed, holding
that "[i]f the plaintiffs can establish that the decision to
suspend the permits was made because of Soranno's exercise of
constitutionally protected rights, they have established a First
Amendment violation, and are entitled to relief under section
1983. . . . [T]he Sorannos therefore need not establish a legally
protected interest in the permits themselves." Id.
In Soranno's the official act of retaliation was cancel-
lation of permits; in Gibson it was harassment with helicopters; in
Mt. Healthy it was non-retention of a teacher. Here, the act of
retaliation was a letter. As the letter was truthful, it is itself
speech protected under the First Amendment. We have been cited to
no case which holds that the federal constitutional tort of
retaliation extends to retaliation by speech. We do not believe
that imposing section 1983 liability on a public official who
responds in kind to protected speech critical of the official would
be consistent with the First Amendment. The First Amendment "was
fashioned to assure unfettered interchange of ideas . . . ." New
York Times, Co. v. Sullivan, 376 U.S. 254, 269 (1964) (quoting Roth
v. United States, 354 U.S. 476, 484 (1957)). "It is a prized
American privilege to speak one's mind although not always with
perfect good taste, on all public institutions . . . and this
opportunity is to be afforded for 'vigorous advocacy' no less than
'abstract discussion.'" Id. The First Amendment is reflective of
"a profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."
Id. at 270. Debate is impossible where only one side can speak.
Making public officials civilly liable for retaliatory speech
would, in essence, convert the First Amendment model of an
interchange into a one-way street. As we believe this would be
fundamentally inconsistent with the values protected by the First
Amendment, we conclude that no valid claim of retaliation has been
asserted by Thoma.
B. The Claim for Violation of Federal Regulations
What remains is the question whether a section 1983
action may be maintained against Hickel based on a claim that he
improperly obtained and used Thoma's APSIN file. The answer to
this question is no. Thoma has relied on 28 C.F.R. sec. 20.21
requires states using systems like APSIN to promulgate a plan which
ensures "that dissemination of nonconviction data has been limited"
to specified individuals and agencies. This regulation was not
violated in this case as the letter to the Sierra Club made no
reference to nonconviction data.
Further, even if a violation of this regulation were
established, a section 1983 action could not be based on such a
violation. In Polchowski v. Gorris, 714 F.2d 749 (7th Cir. 1983),
a claim was brought based on a violation of the enabling statute
underlying 28 C.F.R. sec. 20. That statute, 42 U.S.C. sec.
forbade the release of criminal history information obtained from
the Justice Department. [Fn. 3] Despite this prohibition, a police
chief released information so obtained concerning a candidate for
local office. The court held that no section 1983 action could be
maintained based on this release as the enabling statute "does not
create an enforceable right to prevent the disclosure of criminal
history information." Id. at 751.
Cline v. Rogers, 87 F.3d 176, 184 (6th Cir. 1996), is
similar to Polchowski. The court held that a county sheriff who
had allegedly disclosed protected criminal history records to a
private citizen was not subject to suit under section 1983. The
court relied on the same rationale as Polchowski, reasoning that
the underlying statute does not create a privately enforceable
right of action, and stating that subsection (b) of 42 U.S.C. sec.
3789g "imposes compliance obligations only on a federal agency, not
upon the defendants [non-federal officials]." Id. at 183.
We agree with the Polchowski and Cline decisions and
conclude that no cause of action maintainable under section 1983
has been plead.
III. Thoma Has a Claim for Violation of State Regulations But Not
for Violation of the State Constitution
We turn to Thoma's state law claims. He asserts three
tort theories based on (1) violation of his right to free speech,
guaranteed by article I, section 5 of the Alaska Constitution; (2)
violation of his right to privacy, guaranteed by article I, section
22 of the Alaska Constitution; and (3) violation of the state
regulations governing use and distribution of APSIN information, 13
AAC 25.260 and .280. For the reasons that follow we hold that a
claim may be based on a violation of the regulations, but claims
may not be based on the other provisions.
A. State Regulation Claim
13 AAC 25.260 limits the dissemination of APSIN
information "to law enforcement officers . . . for the purpose of
the detection of crime and identification and apprehension of
criminals." 13 AAC 25.280 prohibits the release of APSIN
information to non-law enforcement officials "except upon order of
a court of competent jurisdiction, issued for good cause shown and
where [the information] will not be put to an improper use . . . ."
In 1991 there was no explicit remedy provided for violation of
these regulations. [Fn. 4]
The Restatement (Second) of Torts sec. 874A (1979)
When a legislative provision protects a
class of persons by proscribing or requiring certain conduct but
does not provide a civil remedy for the violation, the court may,
if it determines that the remedy is appropriate in furtherance of
the purpose of the legislation and needed to assure the
effectiveness of the provision, accord to an injured member of the
class a right of action, using a suitable existing tort action or
new cause of action analogous to an existing tort action.
We have followed the rationale of this section in Plancich v.
State, 693 P.2d 855, 859 (Alaska 1985) (tort action based on
statutory duty to keep seaplane docks accessible to seaplanes); see
Walt v. State, 751 P.2d 1345, 1353 n.17 (Alaska 1988) (Restatement
sec. 874A discussed). In our view the rationale of section 874A is
applicable with respect to 13 AAC 25.260 and .280.
In the present case, unlike the situation in Walt, there
is no remedial system of enforcement and thus no risk that the
balance struck by the legislature in devising a remedial system
might be skewed by permitting a private tort remedy. Further, it
is evident that one purpose of the confidentiality provisions of
sections .260 and .280 is to protect people whose APSIN files may
contain damaging or embarrassing information from the injury that
might result from the publication of those files. Thoma is a
member of this class. Inferring a tort action from violations of
sections .260 and .280 is, in our view, an appropriate way of
enforcing their confidentiality provisions.
Hickel argues that Thoma's complaint does not encompass
an action based on violation of the state APSIN regulations. We
disagree. The complaint alleges that Hickel's actions included
"utilizing state criminal justice system resources to identify
plaintiff's contacts with law enforcement entities in the criminal
justice system . . . in an effort to embarrass, discredit and
punish"Thoma. These actions were alleged to violate state public
policy. The only shortcoming of these allegations is that the
regulations concerning the state criminal justice system which
express the state public policy were not specifically mentioned.
This is not a fatal pleading defect. Under notice pleading, a
complaint is sufficient when it reasonably informs the opposition
of the nature of the claim. See Tremps v. Ascot Oils, Inc., 561
F.2d 41, 44-45 (7th Cir. 1977) (complaint need not state specific
provision of securities law under which defendant was liable).
Further, Thoma did specify the regulations on which he relied in
his memorandum in support of his motion for partial summary
judgment and in opposition to Hickel's motion for summary judgment.
The memorandum stated:
Defendant also violated state law. 13
AAC 25.260 allows distribution of information only to the subject
of the information and "to law enforcement officers . . . for the
purpose of the detection of crime and identification and
apprehension of criminals." 13 AAC 25.280 states further that the
information in the system is "confidential"and can be released to
non-law enforcement personnel only "upon order of a court of
competent jurisdiction, issued for good cause shown and where they
will not be put to an improper use[.]" Defendant was not a law
enforcement officer, did not have a court order, and was not using
this information for proper purposes.
In response to Hickel's argument that Thoma waived any
cause of action under the state regulations, Thoma answered as
follows in his reply brief:
Thoma is not asserting a cause of action for
violation of the regulations; he cites state regulations to show
that his right to have APSIN used only for law enforcement purposes
was clearly established. The cause of action is brought directly
under the Alaskan Constitution, which was pled in the complaint.
The key element of Thoma's state constitutional tort claim based on
violation of the APSIN regulations is that Hickel used information
concerning Thoma obtained in violation of the APSIN regulations.
Violation of the regulations is thus subsumed within Thoma's state
constitutional tort theories. As Hickel has pointed out, the
availability of alternative, non-constitutional remedies is a basis
for refusing to accept a constitutional tort theory. E.g., Johnson
v. Alaska Dep't of Fish & Game, 836 P.2d 896, 909 n.23 (Alaska
1991) (remedies available under AS 18.80); State v. Haley, 687 P.2d
305, 317-18 (Alaska 1984) (AS 09.50.250 furnished alternative
remedies). In order to determine whether this ground exists as a
defense to Thoma's state constitutional tort theories, the validity
of the alternative remedy based on violation of the state
regulations must be determined. Thus the merits of the tort remedy
based solely on the regulations are clearly before us. The
language from Thoma's reply brief quoted above does not suffice to
require that we consider whether Thoma has a state constitutional
tort action based on violation of the APSIN regulations since, as
we hold, a direct tort action based on the regulations exists.
B. State Constitutional Claim
Thoma's attempt at asserting tort claims based on state
constitutional violations fails for a number of reasons. The claim
based on the free speech clause, article I, section 5, lacks merit
because as expressed above, a government official has a constitu-
tionally protected right to speak, or write, in response to
critical speech. Concerning Thoma's claim based on the constitu-
tional right to privacy, Thoma has not established that publication
of his APSIN file would violate article I, section 22. Further,
given our decision that a private tort action may be maintained for
violation of the APSIN regulations, a direct constitutional remedy
would be superfluous. [Fn. 5]
C. Immunity for State Regulation Claim
The final question for resolution is whether Hickel is
shielded by absolute immunity from Thoma's claim for violation of
the state APSIN regulations. We conclude that qualified rather
than absolute immunity should govern this action. Our analysis of
this point largely tracks that which we used concerning the
defamation claim presented in Aspen Exploration Corp. v. Sheffield,
739 P.2d 150, 158 (Alaska 1987).
There is little or no utility in permitting a governor to
consult APSIN records for non-law enforcement purposes. Governors
are unlikely to be subjected to numerous charges that they have
improperly referred to APSIN records and when such charges are made
they are unlikely to result in lengthy trials. No alternative
remedies exist in favor of a person whose confidentiality rights
have been violated. Id. at 160-162. Imposing a rule of absolute
immunity would run counter to the legislative judgment implicit in
AS 12.62.200. [Fn. 6] Finally, it is important that public
officials be deterred from improperly using information which their
office gives them access to.
In view of our decision on the merits, the appeal
concerning attorney's fees is mooted.
Four justices have participated in the decision of this
case. The court is evenly divided with respect to part II of the
opinion, concerning whether valid federal claims have been
asserted. A decision by an evenly divided court results in an
affirmance. City of Kenai v. Burnett, 860 P.2d 1233 (Alaska 1993).
Therefore, the decision of the superior court with respect to the
federal claims is affirmed. Three justices concur in part III.A,
concerning the state regulations claim. Therefore, the decision of
the superior court is reversed with respect to the state
regulations claim. Two justices concur in part III.B, relating to
the state constitutional claim, and two justices would not reach
this claim. This claim is therefore also affirmed by an evenly
divided court. All justices concur in all other parts of the
opinion not mentioned in this conclusion.
Accordingly, the judgment of the superior court is
AFFIRMED regarding the federal claims and the state constitutional
claim, REVERSED regarding the state regulations claim, and REMANDED
for further proceedings consistent with this opinion.
CARPENETI, Justice pro tem, with whom RABINOWITZ, Justice, joins,
dissenting in part.
The court holds in Part II that Hickel is entitled to
qualified immunity from this suit because Thoma failed to assert
a valid claim under 42 U.S.C. sec. 1983, concluding that a sec.
claim does not reach retaliation by speech because imposition of
sec. 1983 liability would have a chilling effect on expression
protected by the First Amendment. I dissent from this holding.
The court concludes that imposition of sec. 1983
on a public official who "responds in kind"to protected speech
critical of the official would not be consistent with the First
Making public officials civilly liable for
retaliatory speech would, in essence, convert the First Amendment
model of an interchange into a one-way street. As we believe this
would be fundamentally inconsistent with the values protected by
the First Amendment, we conclude that no valid claim of retaliation
has been asserted by Thoma.
Op. at 11.
By focusing on the vehicle for the retaliation, a
letter, the court misinterprets the civil rights statute.
Section 1983 only provides liability for conduct. Specifically,
a sec. 1983 defendant is liable only for depriving a person of his
or her federal rights under color of state law. See 42 U.S.C. sec.
1983 (1994). The defendant's speech is incidental and not the
basis for the sec. 1983 violation.
The state action that forms the basis for Thoma's sec.
1983 claim is not the sending of a letter responding in kind to
Thoma's complaints about Hickel's performance as governor. The
violation of sec. 1983 in this case occurred when Hickel used his
official access to the ASPIN database for an unauthorized and
unconstitutional purpose: to search for information about Thoma
and publish it in order to discredit him in retaliation for
Thoma's protected political speech. [Fn. 1]
The court cites Soranno's Gasco, Inc. v. Morgan, 874
F.2d 1310, 1314 (9th Cir. 1989), Gibson v. United States, 781
F.2d 1334, 1338 (9th Cir. 1986), and Mt. Healthy City School
District v. Doyle, 429 U.S. 274, 287 (1977), for the well-
established rule that an action under state authority in
retaliation for the exercise of First Amendment rights
establishes a claim under sec. 1983 -- even if the action, when
taken for a different reason, would have been proper. The court
then attempts to distinguish the conduct in these cases from the
speech in the present case:
In Soranno's the official act of
retaliation was cancellation of permits; in Gibson it was
harassment with helicopters; in Mt. Healthy it was non-retention of
a teacher. Here, the act of retaliation was a letter. As the
letter was truthful, it is itself speech protected under the First
Op. at 10.
In attempting to distinguish these cases from the
present case in this manner, the court ignores the fact that the
letters sent to plaintiff's customers in Soranno's by the county
air pollution district informing them that plaintiff's permits
had been suspended were also protected expression under the First
Amendment, as was the letter from the school superintendent to
the plaintiff in Mt. Healthy explaining why he would not be
rehired. See Soranno's, 874 F.2d at 1316; Mt. Healthy, 429 U.S.
at 574. However, the defendants' First Amendment rights in
Soranno's and Mt. Healthy were not at issue because, as is true
in the present case, it was the defendants' conduct, using their
power as state officials to retaliate against an individual's
exercise of free speech rights, that gave rise to their liability
under sec. 1983. Hickel illegally ordered that the ASPIN database
be accessed and that confidential information found therein be
published for the sole purpose of retaliating against Thoma for
his exercise of his First Amendment rights. By focusing on
Hickel's protected expression instead of his abuse of power, the
court creates an illusory First Amendment dilemma.
The purpose of sec. 1983 is to provide a remedy for abuse
of state authority in violation of federal law. Soranno's, 874
F.2d at 1314. In each of the cases cited by the court, a state
actor used his or her official power for an improper purpose: to
retaliate against an individual for the exercise of his or her
First Amendment rights. In each case, the action taken would
have been legal had it not been motivated by the desire to
retaliate against the exercise of First Amendment rights.
In Soranno's, the county had the authority to suspend a
permit if a permittee did not provide certain requested
information. 874 F.2d at 1316. The plaintiffs did not provide
information requested by the county, and therefore suspension was
warranted. However, the court found that the suspension violated
sec. 1983 if "the decision to suspend the permits was made because
of Soranno's exercise of constitutionally protected rights." Id.
In Mt. Healthy, the Supreme Court found that the
plaintiff's employment was at will and could have been terminated
at any time. 429 U.S. at 283. However, the plaintiff
established a sec. 1983 claim because the school's decision not to
rehire him "was made by reason of his exercise of
constitutionally protected First Amendment freedoms." Id. at 283-
In Gibson, while the United States Court of Appeals for
the Ninth Circuit held that the Los Angeles police had the
authority to fly helicopters over residential neighborhoods,
frequent flights at low altitude over the plaintiff's house to
intimidate her and induce her to stop her political advocacy
stated a sec. 1983 claim. Gibson, 781 F.2d at 1338.
These cases illustrate that the means of retaliation by
a state actor is irrelevant so long as the retaliatory conduct is
under color of state law and is substantially motivated by the
exercise of the complainant's First Amendment rights.
Allowing a sec. 1983 claim in this case would not, as the
court fears, subject public officials who respond to political
speech "in kind"to sec. 1983 liability. Had Hickel's aide written
a letter to the Sierra Club simply refuting Thoma's allegations,
and suggesting that Thoma was not someone with whom the Sierra
Club should align itself, a valid sec. 1983 claim would not lie,
for Hickel would have been doing no more than exercising his First
In the present case, state personnel were authorized to
access the ASPIN database and publish conviction data obtained
therein only for law enforcement purposes. 13 Alaska
Administrative Code (AAC) 25.280. However, Hickel ordered his
aides to obtain damaging information about Thoma through ASPIN
and publish it to discredit him in retaliation for Thoma's ethics
charges and recall effort against Hickel. This constitutes the
same kind of abuse of state authority designed to retaliate
against and chill political expression found in the cases above.
Therefore, I would hold that Thoma has stated a claim under sec.
1983 [Fn. 2] and remand to the superior court for further
proceedings. [Fn. 3]
EASTAUGH, Justice, dissenting in part.
The court holds in Part III.A that Thoma has asserted a
valid tort claim for the alleged violation of state regulations
13 AAC 25.260 and .280. Op. at 14-18. I dissent from that
holding and from Part IV ("CONCLUSION") to the extent it reverses
and remands for consideration of that claim.
It is problematic whether Thoma's complaint pled a
state regulations tort claim, but assuming Thoma preserved that
claim in the superior court, he nonetheless explicitly waived it
during briefing in this court. Hickel's appellee's brief noted
that Thoma seemed to suggest Hickel could be liable in tort for
violating state regulations independent of any constitutional
violation. Hickel then urged this court to decline to consider
any such argument because Thoma's complaint did not assert an
independent state regulation tort claim. In response, Thoma
argued in his reply brief:
Thoma is not asserting a cause of action for
violation of the regulations; he cites state regulations to show
that his right to have APSIN used only for law enforcement purposes
was clearly established. The cause of action is brought directly
under the Alaskan Constitution, which was plead in the
Thoma has thus explicitly disavowed any independent
cause of action for violation of 13 AAC 25.260 or .280. He does
not argue that, should his constitutional claim be dismissed, his
"subsumed"state regulation claim should survive. For whatever
reason, Thoma has chosen to rely on the state regulations only in
context of his constitutional claim. That is his permissible
choice, and we should not force on him a claim he has chosen to
disavow. See Burcina v. City of Ketchikan, 902 P.2d 817, 823
(Alaska 1995) (holding that an issue is not properly before the
court where the issue is not properly raised or briefed, and the
only reference to the issue appears in an opposition memorandum).
I consequently would not reverse and remand for consideration of
the state regulations "claim."
I agree with the remainder of the court's opinion,
including its rejection of Thoma's state constitutional claim. I
agree that Thoma could have, had he wished to do so, pursued a
nonconstitutional claim based on violations of the state
regulations. It is the availability of a potential state
regulations claim that renders a state constitutional remedy
superfluous. Thoma's voluntary disavowal of any state
regulations claim does not allow him to pursue the superfluous
Walt v. State, 751 P.2d 1345, 1348 n.2 (Alaska 1988).
See Stephanie E. Balcerzak, Qualified Immunity for Government
Officials, 95 Yale L.J. 126, 127 n.6 (1985).
42 U.S.C. sec. 3789g(a)&(b) provides:
Confidentiality of information
(a) Research or statistical information;
immunity from process; prohibition against admission as evidence or
use in any proceedings
Except as provided by Federal law other
than this chapter, no officer or employee of the Federal
Government, and no recipient of assistance under the provisions of
this chapter shall use or reveal any research or statistical
information furnished under this chapter by any person and
identifiable to any specific private person for any purpose other
than the purpose for which it was obtained in accordance with this
chapter. Such information and copies thereof shall be immune from
legal process, and shall not, without the consent of the person
furnishing such information, be admitted as evidence or used for
any purpose in any action, suit, or other judicial, legislative, or
(b) Criminal history information; disposition
and arrest data; procedures for collection, storage, dissemination,
and current status; security and privacy; availability for law
enforcement, criminal justice, and other lawful purposes; automated
systems: review, challenge, and correction of information
All criminal history information
collected, stored, or disseminated through support under this
chapter shall contain, to the maximum extent feasible, disposition
as well as arrest data where arrest data is included therein. The
collection, storage, and dissemination of such information shall
take place under procedures reasonably designed to insure that all
such information is kept current therein; the Office of Justice
Programs shall assure that the security and privacy of all
information is adequately provided for and that information shall
only be used for law enforcement and criminal justice and other
lawful purposes. In addition, an individual who believes that
criminal history information concerning him contained in an
automated system is inaccurate, incomplete, or maintained in
violation of this chapter, shall, upon satisfactory verification of
his identity, be entitled to review such information and to obtain
a copy of it for the purpose of challenge or correction.
In 1994 the legislature enacted AS 12.62.200, which allows a
person "whose criminal justice information has been released or
used in knowing violation of [regulations adopted under AS 12.62
including 13 AAC 25.260 and .280]"to bring an action for damages
in superior court. This section does not govern this case as it
was enacted after the events in question here. It does however
reflect a legislative judgment that enforcement of the regulations
concerning APSIN through the mechanism of a private civil action is
good public policy where there is a "knowing violation."
In reaching this conclusion we do not mean to imply that
permitting a direct tort action for violation of state constitu-
tional provisions would, in other circumstances, be appropriate.
Direct tort actions for violation of certain provisions of the
federal constitution have been recognized. The leading case is
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). We have neither adopted nor
rejected the Bivens approach with respect to state constitutional
violations. Vest v. Schafer, 757 P.2d 588 (Alaska 1988). We have
noted that federal courts have not permitted the Bivens remedy
where alternative remedies are available. See Dick Fischer Dev.
No. 2, Inc. v. Department of Administration, 838 P.2d 263, 268
See supra note 5.
When reviewing a grant of summary judgment, all reasonable inferences of fact must be
drawn in favor of the non-moving party. Walt v. State, 751 P.2d 1345, 1348 n.2 (Alaska 1988).
Where there is a factual dispute, the non-moving party's version of the facts is assumed correct. Id.
For the purposes of this appeal, I assume that Thoma's version of the facts is true.
After concluding that sec. 1983 does not apply to speech, the court turns to whether the
illegal use and dissemination of confidential information from the ASPIN file alone supports a sec.
1983 claim against Hickel. Op. at 12-14. The court holds that pursuant to Polchowski v. Gorris, 714
F.2d 749, 751 (7th Cir. 1983) and Cline v. Rogers, 87 F.3d 176, 184 (6th Cir. 1996), the federal
statute prohibiting the release of criminal history information for non-law enforcement purposes does
not create a privately enforceable right of action and therefore does not support a sec. 1983 claim.
This holding is irrelevant to whether violation of Thoma's First Amendment rights supports a sec.
1983 claim because the independent constitutional violation is sufficient to state a sec. 1983 claim.
Because I believe that Thoma has stated a claim under sec. 1983, I would not reach his state
constitutional claims. Accordingly, I do not join the majority's rejection of Thoma's state
constitutional claims in section III.B.