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Creations Unlimited v. State of Alaska (10/9/98), 965 P 2d 1
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
STEVEN C. BRADY, d/b/a )
CREATIONS UNLIMITED, and ) Supreme Court No. S-7916
TERRY T. BRADY, d/b/a )
ALASKA HUSKY WOOD, ) Superior Court Nos.
) 3AN-94-2951 CI / 3AN-94-2807 CI
Appellants, ) (Consolidated)
)
v. )
)
STATE OF ALASKA, TOMAS BOUTIN,) O P I N I O N
and JAMES STANLEY (JIM) )
PETERSON, )
Appellees. ) [No. 5037 - October 9, 1998]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Steven C. Brady, pro se, and
Terry T. Brady, pro se, Anchorage. Kevin M. Saxby, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Justice.
I. INTRODUCTION
A beetle epidemic is decimating forests in Alaska.
Steven Brady and Terry Brady generally oppose the State of Alaska's
policy response to the epidemic. They particularly decry the
State's treatment of them in denying their application to buy the
right to harvest dead and dying trees near Moose Pass. They had
hoped to show that such harvesting can help stanch the epidemic.
The Bradys brought a broad array of claims against the State and
two State forestry officials. [Fn. 1] They appeal two summary
judgments dismissing all claims in their consolidated suits. We
affirm.
II. FACTS AND PROCEEDINGS
A. The Negotiations and Forest Land-Use Plan
A northern spruce bark beetle epidemic is killing vast
numbers of trees in southcentral Alaska. In 1992 the State formed
a Forest Health Initiative, directed by Daniel Golden, to address
the problem. In April 1993 Golden suggested to Terry Brady that he
apply to the Department of Natural Resources (DNR), Division of
Forestry (Forestry), for a negotiated timber sale -- i.e., a sale
without public advertisement of or competitive bidding for the
right to harvest a limited amount of timber. [Fn. 2] Terry could
then conduct a model timber-salvage project to demonstrate his
belief that harvesting and reforestation can fight the epidemic.
In May 1993 Terry twice unsuccessfully applied for a sale
in a 200-acre area near Moose Pass. Kenai-Kodiak Area Forester Jim
Peterson rejected his applications. Peterson noted that a forestry
regulation barred a sale until DNR's Division of Lands (DOL) had
classified the land. [Fn. 3] He also noted Forestry's policy of
not making negotiated timber sales in areas of competitive interest
in timber. Terry offered to help DNR prepare a site-specific
Forest Land-Use Plan (FLUP) for the area by gathering data "for the
200 acres." (In addition to the regulation that Peterson had noted
requiring classification, the timber-sale statute bars sales of
more than ten acres of timber before such an FLUP is in effect.
[Fn. 4])
The Bradys and other timber-sale applicants met with
State Forester Tom Boutin on June 30, 1993. He agreed to
"entertain"six applications for negotiated sales. Terry again
offered to gather data for an FLUP. The State accepted this offer
in a July 21 letter from Peterson:
We would like to take you up on your offer to
help prepare the site-specific plan as required [by] AS 38.05.112.
You indicated your willingness to do the research, compile and
report the required data[,] and submit this information to us. Due
to our present workload, this assistance would help expedite the
sale.
Terry began collecting data, and submitted two draft FLUPs in
September.
The July 21 letter also acknowledged the Bradys' renewed
application for a sale and requested $3,000 "as a presale deposit."
Peterson wrote that Forestry was working with DOL and hoped to
finish classifying the area "expeditiously." "In the meantime,"he
concluded, "we will begin preparation of a sale in the area
requested upon receipt of the presale deposit. We look forward to
working with you on successful completion of this proposal." Terry
sent the $3,000, deeming it a "down payment."
On October 4 the public met to discuss forest issues in
Moose Pass; Peterson and State Forester Boutin attended. At the
meeting, Sherman (Red) Smith, another negotiated-sale applicant and
a close business associate of Terry Brady, said, "As far as we're
concerned he's [Boutin's] made a contract with us." Boutin did not
reply; he has affied that he did not hear the comment. On
October 7 DNR Commissioner Harry Noah told the Bradys that DNR
"might . . . reject[]"the proposed sales as not being in the
State's best interest.
A week later Peterson toured the proposed sale area with
the Bradys and other applicants and said that Forestry had sent DOL
"a copy of the Forest Land Use Plan. It's the best site-specific
[data] that we have." Peterson also said, in response to a
question about timing: "We can be prepared to sign . . . make that
contract . . . sign that contract . . . on the day they [DOL] sign
the classification order."
On October 20 Terry submitted his final report and an
invoice for professional services for $26,250. Peterson declined
to pay, writing that, "[i]n all our discussions with you, never at
any time was there an indication of our entering into a
professional-services contract with you."
The parties agree that DOL used Terry's work in preparing
a draft FLUP in October. The State deems the use "paraphrasing"
that appeared only in a draft, not the final plan; the DOL employee
who wrote the plans affied "that no time or money savings resulted
[from the use]." Terry disputes this claim.
On November 12 Peterson wrote Terry Brady that "[a]fter
considerable review, [Boutin] has decided that . . . negotiated
timber sales in the Moose Pass area would not be in the best
interest of the state." Peterson gave two reasons. One was that
there was "competitive interest"in the Moose Pass timber. The
other was that the Bradys and their associates had applied for four
contiguous sales, each of the maximum size for a negotiated sale.
To grant their applications would effectively "circumvent[] the
mandated public processes"-- i.e., public notice and competitive
bidding -- for large timber sales. The Bradys exhaustively pursued
administrative appeals. They each then filed similar suits.
B. The Litigation
The Bradys made three sets of claims: (1) constitutional,
statutory, and tort claims assailing the State's forest management
policy in general; (2) takings claims based on the State's dealings
with them; and (3) common-law and equitable claims based on those
dealings. Terry moved "for expedited consideration"of his demand
for injunctive relief as to the State's forest policies; the court
treated this as a motion for a preliminary injunction. The State
cross-moved for summary judgment on all claims but estoppel. Brady
complained that the common-law and equitable issues were unripe for
adjudication, for want of discovery, and only briefly addressed
them in opposing the cross-motion. The court accepted the State's
detailed proposed findings of fact and conclusions of law verbatim
in November 1994, granting it partial summary judgment on all
claims but estoppel.
Terry amended his complaint to add Peterson and Boutin as
defendants in their individual capacities. He expanded his
remaining common-law claim(s). He also added a constitutional
claim that the State and the officials (collectively the State) had
retaliated against him for having sued. (We recount the facts and
history of this claim in part III.E below.) The court granted
defendants summary judgment on the remaining claims in October
1996. Its March 1997 final judgment awarded the State attorney's
fees and identified its November 1994 findings of fact and
conclusions of law as the basis for both partial summary judgments.
The Bradys appeal the summary judgments. (They also contest the
attorney's fee award but, as we explain in the margin, have waived
the issue by failing to develop it. [Fn. 5])
III. DISCUSSION
A. Standard of Review
We review summary judgments de novo, drawing all
reasonable inferences in the nonmovants' favor and viewing all
facts in the light most favoring them. [Fn. 6] We determine
whether the parties genuinely dispute any facts; whether, if so,
those facts are material to a viable legal theory; and, if not,
whether the undisputed facts entitle the movant to judgment as a
matter of law. [Fn. 7] Any dispute must not only be genuine and
material, but arise from admissible evidence, such as affidavits
recounting personal knowledge of specific facts. [Fn. 8]
B. The Bradys Have No Viable Common-Law or Equitable Claims
Arising from the Moose Pass Negotiations.
We have divided the Bradys' nonconstitutional claims
about the Moose Pass transaction into two groups: those arising
from the State's ultimate decision not to sell them the timber, see
infra Part III.B.1; and those arising from its alleged inducement
of, and ultimate refusal to pay for, Terry's professional services,
see infra Part III.B.2.
1. The Bradys cannot prove that the State breached any
legally enforceable promise regarding the timber.
The Bradys argue that "an enforceable contract to sell
[timber] was formed"because "an agreement, . . . subject only to
a site-specific plan and land classification, and final agreement
to price, had been reached." State officials manifested this
agreement by comments, omissions, and acts between the June promise
to entertain applications and the November decision to deny them.
The Bradys also argue that, even if we cannot enforce this promise
as a contract, we can do so via promissory estoppel. Their version
of the facts suggests two arguable promises -- a promise to sell
timber, and a promise to negotiate in good faith to reach an
agreement to sell timber. We consider each promise in turn, in
terms both of contract and promissory estoppel.
a. The State made no promise to sell timber.
Our opinion last year in Davis v. Dykman [Fn. 9] guides
our review of this alleged promise. To show a contract, the Bradys
must point to evidence that, when viewed in a light most favorable
to them, shows that the State unequivocally accepted an offer by
words and actions that objectively manifested an intent to be
bound. [Fn. 10] Unless some evidence could support such a
finding, we will not disturb the summary judgment.
Had the parties formed a contract making classification
of the land a condition precedent to their duties, or having an
open price term, it would likely be enforceable. [Fn. 11] This we
need not decide. When the State promised to "entertain"
applications (i.e., offers), it promised at most to negotiate -- to
prepare for a sale subject to its ultimate determination that a
sale was in its best interest. The State never objectively
manifested an intent to be bound before it made that determination.
Davis makes clear that a court can never enforce an
agreement to negotiate so as to bind one party to the ultimate
agreement that the parties sought, but failed, to negotiate. In
affirming a summary judgment that two parties had not formed a
contract, we held that, while one party's letter "[could] be
construed as an offer to negotiate,"and while the other's
acceptance may have formed "an agreement to negotiate,"a court
cannot enforce such an agreement by drafting, and then imposing on
one party, the ultimate agreement that the parties failed to reach.
[Fn. 12] Boutin's "offer"to entertain applications, and the
Bradys' submission thereof, may have formed an agreement to
negotiate, but the State "necessarily,"like the defendant in
Davis, "retained the ability to say 'no.'"[Fn. 13] The question
thus becomes whether jurors could reasonably infer that the State
in fact said "yes"to a timber-sale contract. We conclude that
they could not.
State Forester Boutin agreed to "entertain"applications
for a negotiated timber sale. The governing statute, AS 38.05.115,
suggests that DNR may not make such sales until the commissioner
finds that doing so is in the State's best interest. [Fn. 14] The
Bradys do not claim that Commissioner Noah ever found the sales to
be in the State's best interest and accepted their offer. They
argue instead that his subordinates, Peterson and Boutin, did so.
They formed a binding oral contract, the Bradys argue, in which
classification was only a condition precedent to any duty to
perform, and in which setting a price and putting the contract in
writing were but details. We do not agree. Peterson's and
Boutin's various comments and silences cannot, as a matter of law,
manifest unequivocal acceptance of the Bradys' offer. (This
conclusion makes it unnecessary to address the ill-briefed issue of
whether the commissioner had in fact delegated to either of them
the authority to bind the State to timber-sale contracts.)
We first consider Boutin's failure to respond to Red
Smith's comments at the October 4 public meeting. The Bradys
misconceive the offer/acceptance framework in arguing that Boutin
accepted their offer by his silence. Smith's comment that
"[Boutin]'s made a contract with us"was not an offer by Smith, let
alone by the Bradys -- their offers were their applications.
Boutin cannot by his silence have "accepted"this "offer"; the rule
that the Bradys themselves cite says that silence
can operate as an acceptance in the following
cases and no others: . . . (b) Where the offeror has stated or
given the offeree reason to understand that assent may be
manifested by silence . . ., and the offeree in remaining silent
. . . intends to accept the offer. [Fn. 15]
Smith was not making an offer, but stating a belief that a contract
already existed -- i.e., that an offer and acceptance had already
been made. He never indicated to Boutin that, by silence, he would
manifest assent. [Fn. 16]
The Bradys also stress Peterson's words, primarily his
comment during an October 14 site tour of the proposed sale area
that "[w]e can be prepared to sign . . . make that contract . . .
sign that contract . . . on the day they [DOL] sign the
classification order."
Those words, however, do not manifest unequivocal
acceptance. Peterson did not promise to sign the contracts once
the land was classified, nor did he say that a binding oral
contract already existed and that the formality of memorialization
would occur then (i.e., colloquially, "This is a done deal, and
we'll put it in writing then."). Rather, "We can be prepared to
sign . . . make that contract . . . sign that contract . . . on the
day they sign the classification order,"is a comment about timing
and capacity, not a promise. Steven Brady's own affidavit states
that Peterson was speaking "in response to a question on timing"
(emphasis added). Peterson's words simply were not, as a matter of
law, promissory.
The Bradys, however, insist that a jury evaluate this and
other exchanges with State officials. They and the State rely on
affidavits disputing the tenor and import of various conversations.
At least two of our precedents, not cited by the Bradys, do suggest
that courts must be generous at the summary-judgment stage to a
party alleging a contract whose existence turns on a conversation
that the parties recall differently. But one of those precedents
involved a tribunal's total failure to consider evidence of
nonwritten communication. [Fn. 17] Another involved a summary
judgment that two parties had not formed a contract based on a
writing whose facial ambivalence made it necessary to consider
extrinsic evidence; i.e., conflicting recollections of what was
said at a dinner meeting. [Fn. 18] Here, we have considered all
alleged communicative acts, written or not, and find no
ambivalence: no reasonable juror could find that the comments,
silences, or conduct, viewed in the light most favoring the Bradys,
objectively manifested a present intent to be bound to sell timber.
The Bradys also claim that, even if there is no valid
contract, they foreseeably relied on the State's "promise"to sell
timber, and so we should estop the State to deny that promise. The
original point of promissory estoppel was to enable courts to
enforce contract-like promises made unenforceable by technical
defects or defenses. [Fn. 19] We have thus long held that one
requirement for a promissory estoppel is that "an actual promise
was made."[Fn. 20] We need not list the other requirements, for
promissory estoppel cannot, any more than contract, help the Bradys
prove a promise to sell timber. The crux of their contract claim
is that Peterson or Boutin at some point accepted their offer by
promising that the State would sell them timber (and that, once DOL
had classified the land, the State would sign a written timber-sale
contract). The promise to sell timber that would be the
"acceptance"required for a contract is thus analytically identical
to the "promise"to sell timber required for a promissory estoppel.
But the State, as we explained above, never made such a promise.
b. No disputed facts are material to whether the
State broke its promise to negotiate in good faith.
The Bradys' briefs suggest two arguments: to wit, that
the State promised not only to sell timber, but to negotiate in
good faith to reach an agreement to sell timber. The State argues
that, while it did make the latter promise, it did not break it.
The Bradys' claim is somewhat like that of a disappointed bidder on
a public contract who aims to recover bid-preparation costs, under
the rule of King v. Alaska State Housing Authority, [Fn. 21] by
proving that the State breached its implied promise to consider
bids fairly and in good faith. The Bradys do not cite King, and
their claim falls outside its rationale for reasons discussed in
the margin. [Fn. 22] Its rule, however, is relevant background to
the question of whether the Bradys may base a claim on an alleged
breach of the State's promise to entertain applications in good
faith.
Many courts enforce promises to negotiate in good faith,
[Fn. 23] although there is no clear majority rule. [Fn. 24] Most
courts that do so limit relief to reliance damages: i.e., expenses
incurred in negotiating, drafting, or preparing to perform a
contract scuttled by another's bad-faith negotiating conduct. [Fn.
25] Most deny expectation damages: i.e., expected profits on the
hoped-for contract. [Fn. 26] We held in Davis that a court may not
enforce a failed agreement to negotiate by awarding what were
essentially expectation damages, but did not address the
availability of reliance damages. [Fn. 27] Our King rule could
support by analogy a more general cause of action, limited to
reliance damages, for breach of a promise to negotiate in good
faith.
We need not decide today, however, whether to allow
reliance-damage claims based on promises to negotiate in good
faith. Even if we did, we would hold as a matter of law that the
Bradys cannot recover. They raise no genuine dispute of fact
material to the simplest requirement of such a claim: that the
State broke its promise to entertain applications in good faith.
The Bradys charge defendants with many wrongs, but only
one concerns the promise to entertain their applications in good
faith. They claim that the State's asserted policy reasons for
declining to make negotiated sales, see supra at page 5, are
pretexts. The real reason, they suggest, was fear of political
controversy, environmentalist lawsuits, and DNR staff dissension.
They offer evidence that the State's asserted reasons lack a
factual basis, and that, unlike the political concerns, officials
never mentioned them until the rejection letter. (As we explain in
the margin, the Bradys also make a highly misguided argument that
the rejection letter made tortious misrepresentations. [Fn. 28])
Even assuming on summary judgment that all those factual
claims are true, though, it is simply not bad faith for executive-
branch officials who have never promised to pursue a given project,
expressly or implicitly, to decide not to do so because of
political controversy, litigation, and/or staff dissension. Quite
to the contrary, that is part of their job. Executive officials
must balance competing interests and calculate costs both political
and fiscal (e.g., the costs of a lawsuit). One side of a policy
conflict will lose each skirmish, and may see a project rejected
for reasons beyond its technical merits. That does not mean that
officials acted in bad faith; the State does not, once it takes a
proposal under consideration, assume a duty thenceforth to ignore
all factors beyond the proposal's narrow technical merits.
It is instructive to compare two leading cases, one from
New York and one from Colorado, holding that agencies may have
actionably breached promises to negotiate in good faith to sell
public property. [Fn. 29] In both, urban renewal authorities
agreed in writing to negotiate with developers, giving them
exclusive rights for fixed periods to work up bids to buy and
redevelop public properties. [Fn. 30] The authorities ended
negotiations, the developers sued, and courts ultimately found
their claims viable [Fn. 31] (expressly limited, in one case, to
reliance damages [Fn. 32]). In the New York case, Goodstein
Construction Co. v. City of New York, Goodstein claimed that the
City had negotiated with another firm while expressly bound to
negotiate only with Goodstein. [Fn. 33] In the Colorado case,
Vigoda v. Denver Urban Renewal Authority, the Authority claimed an
"impasse"in negotiations, but there was a genuine dispute as to
whether it had in fact refused to negotiate further to retaliate
for Vigoda's critical comments to the press. [Fn. 34]
The Bradys can allege no broken promise about a specific
process of negotiation, for the State made none. Nor do they
allege that the State ended negotiations for an affirmatively
improper reason like retaliating for constitutionally protected
activity. We thus need not decide in this case whether to ever
allow a claim for costs incurred in reliance on a promise to
negotiate in good faith. Any such claim would surely require, at
least in the governmental context, more than an allegation that the
decision to end negotiations was so misguided, and the stated
reasons so implausible, that it must have been in bad faith. (A
broader theory might well run up against discretionary-function
immunity; officials responsible for allocating scarce resources
have broad discretion to choose specific projects. [Fn. 35])
Breach of some specific promise about the negotiation process, for
example, or evidence of an affirmatively wrongful motive -- like
corruption, extortion, or, perhaps, retaliation for unrelated
activity -- could suffice. While a genuine factual dispute about
the basis or sincerity of the asserted reasons for ending
negotiations would be material if there were evidence of some
improper "real"reason, it cannot suffice alone. And as we noted
above, though the Bradys feel understandably frustrated by the
"real"reasons that they suspect for DNR's decision, those reasons
are not improper.
2. Terry Brady cannot prove that the State contracted
to pay him to research an FLUP, will be unjustly enriched if it
does not pay him, or fraudulently induced him to complete the work.
Terry claims that the State owes him $26,250 on a
contract or quantum meruit theory for his professional services in
researching an FLUP. He also suggests that Peterson tortiously
misrepresented the State's intent in order to induce him to
complete the work. The State does not dispute that Terry offered
to do the disputed work, and that it accepted his offer.
a. There was no contract.
There was no written contract for Terry's work, and he
said in an administrative appeal, "I admit there was no agreement
as to compensation." There was thus no enforceable contract for
want of an essential term -- price. [Fn. 36] (This alone would
suffice to bar enforcement, but we also note that, as the State
pointed out to Terry, it can only make professional services
contracts in writing and after bidding and formal approval. [Fn.
37])
b. The State was not unjustly enriched.
To gain restitution of the value of his services in
quantum meruit, Terry need not show an actual promise or agreement,
[Fn. 38] but instead that: (1) he conferred a benefit on the State;
(2) the State appreciated the benefit; and (3) the State accepted
and retained it under circumstances making it inequitable to do so
without paying him. [Fn. 39] While the State disputes all three
elements, we need address only the last, inequity, which is the
most significant. [Fn. 40]
It is not unjust to retain a benefit given without
expectation of payment. [Fn. 41] We have noted in dictum that
this is true in a business as well as a friendly context if
"'services were rendered simply in order to gain a business
advantage.'"[Fn. 42] That is the State's view: Brady offered to
do the work; the State accepted; neither mentioned compensation;
and he did the work in his self-interest, hoping to facilitate a
contract.
The Restatement of Restitution provides, and many non-
Alaskan cases have held, that one who renders services in the
expectation of gaining a future business advantage ordinarily
cannot recover the value of those services in quantum meruit, even
if her expectation goes unrealized. [Fn. 43] We adopt that rule.
We note that it has two exceptions: a plaintiff may be entitled to
restitution if she manifested an expectation that the recipient
would pay for her services, or if she rendered services in reliance
on the recipient's promise to enter a contract, or to negotiate in
good faith to form one, and the recipient then broke that promise.
[Fn. 44] Thus, if the State had promised to execute a timber-sale
contract, or breached its promise to negotiate in good faith,
restoring to Terry the value of his services might be a viable
theory. But the State, as we discuss in Part III.B.1 supra, did
neither.
An inquiry into whether a plaintiff manifested an
expectation of payment has two aspects. It is objective -- i.e.,
a court must ask whether a reasonable person in the recipient's
position would have realized from the plaintiff's words and acts
that she expected to be paid. [Fn. 45] And it is equitable, as the
1983 draft Second Restatement stresses by asking whether, if the
recipient retains the benefit of the services without paying, his
conduct will appear "unconscionable in purpose or effect."[Fn. 46]
A comment to the 1983 draft makes a point relevant to both aspects
of the inquiry: a party negotiating a contract usually realizes
that she is venturing time and effort at the risk that negotiations
may fail. [Fn. 47] Thus, when a disappointed plaintiff seeks
restitution of the value of services that she provided during
negotiations, a court must decide whether, under all the
circumstances, the recipient knew or should have known that the
plaintiff expected to be paid, or whether, as is usually fair to
say, the plaintiff should have known that she was taking a chance.
Terry never said, until he submitted his invoice, that he
expected to be paid. He seemed to have volunteered to do the work
in order to gain a business advantage by expediting the land
classification. His brief does not discuss whether a reasonable
entity in the State's position would have inferred that he expected
to be paid. (He did argue below that the project's economic
realities made that expectation apparent, but he has not argued
this on appeal.) He identifies no genuine dispute of fact material
to the issue of whether the State should have realized that he
expected to be paid. Given his silence, and the reasonable
alternate explanation for his efforts, officials had little or no
reason to think that he did. There is no evidence to support a
finding that their acts were unconscionable in purpose or effect.
c. Neither the State nor Peterson is liable for
fraudulently inducing Terry to finish a draft FLUP.
Terry claims that Peterson at some point learned that the
State had decided not to make negotiated sales, yet tortiously
misrepresented its intentions in order to induce Terry to complete
his work on an FLUP. The crux of his claim is a comment that
Peterson allegedly made in August to Larry Smith, one of the six
negotiated-sale applicants. Peterson allegedly warned Smith not to
tie up $3,000 in a presale deposit, because Peterson did not think
that the State intended to make any sales. Terry claims that
Peterson thus misrepresented the State's intent when he told the
Bradys on October 14, "We can be prepared to . . . sign that
contract." (Terry may also have meant to sue the State for
misrepresentation, but sovereign immunity bars such a claim. [Fn.
48])
We need not decide whether Peterson made any
misrepresentation, for Terry did not make adequate allegations or
point to evidence on a necessary element of a misrepresentation
claim: to wit, what reliance Peterson intended to induce by, or how
Terry justifiably relied to his detriment on, the October 14
"misrepresentation."[Fn. 49] Terry had already submitted his two
draft reports, and he submitted the final report six days later.
Peterson said in the same October 14 conversation that he had
already sent Terry's draft to DOL; we know that they had already
used it. Terry does not specify what Peterson hoped to induce him
to do, or what he (Terry) in fact did. His claim thus fails as a
matter of law.
C. The Bradys' Takings Claims Wholly Lack Merit.
The Bradys argue that the State, Boutin, and Peterson
have unconstitutionally taken three species of "property"from them
without compensation: (1) Terry's work-product; (2) the Bradys'
right "to see the negotiations [for a timber sale] through"; and
(3) their "forest resource property rights, shared in common with
all other [Alaska] citizens"under Article VIII of the Alaska
Constitution. These claims are patently meritless -- the latter
two because they involve no constitutionally cognizable property,
and the first because, although Terry's services constitute
"property,"[Fn. 50] the State did not unconstitutionally "take"
them, since he voluntarily gave them.
D. The State Is Not Liable in Negligence, or Subject to an
Accounting, or to an Injunction under the Public Trust Doctrine or
Forest Protection Statutes, for Its Management of Alaska's Forests.
The Bradys make long, articulate, impassioned, and
voluminously supported arguments, based on their forestry
expertise, assailing the State's forest policies. While we are not
qualified to say how effective their arguments are as political
critiques or professional forest policy proposals, we have little
difficulty in finding that they lack merit as legal arguments.
The Bradys claim that the State's failure to stanch the
beetle epidemic renders it liable in negligence, in equity as a
trustee who has allowed waste of the trust corpus, and under
forest-protection statutes; subject to an injunction in the nature
of mandamus to obey those statutes and the Public Trust Doctrine;
and subject to a judgment that it has violated the law by declining
to enforce laws resulting from a 1982 ballot initiative and
directing the State government to manage federal lands located
within Alaska. [Fn. 51]
We need not discuss the merits of most of these claims,
for the State enjoys discretionary-function immunity under
AS 09.50.250(1) for its setting of forest-management policy. While
the doctrine of discretionary-function immunity requires us to draw
a "sometimes vague and wavering line"[Fn. 52] between acts of
policymaking, for which the State is immune from suit in tort, and
operational acts that implement policy, for which it is not immune,
the broad failures that the Bradys attribute to the State fall well
on the immune "planning"side of the line. Even if some aspects of
the decisions were near the line, moreover, we note that
"implementation of [a] policy is immune if the decisionmaker is
authorized to consider basic political, social or economic policy
factors and in fact considers them."[Fn. 53]
The Bradys misconstrue the planning/operational
distinction, arguing that "while particular . . . procedures may be
discretionary, the requirement to take actions pursuant to
[AS 41.15 and 41.17] is strictly ministerial." The point of the
distinction, however, is to immunize policy-level (or
"discretionary") decisions about whether to undertake activities,
but to leave the State subject to liability, once it decides to
undertake an activity, for negligently performing particular
operations to implement the broad policy decision. [Fn. 54] The
Bradys quote our recent statement that "when a statute, regulation,
or policy specifically prescribes a course of conduct, the
discretionary-function immunity [exception] does not apply."[Fn.
55] This aids them not, for they identify no statutes,
regulations, or policies prescribing specific courses of conduct
that the State has neglected or violated. They cite all of the
Forests and Forest Resources chapters of the Alaska Statutes. [Fn.
56] They offer as standards only those chapters' declarations of
"intent"-- "to provide protection, commensurate with the value of
the resources at risk, for . . . natural resources"[Fn. 57] and
"to ensure that management of forest resources guarantees perpetual
supplies of renewable resources"[Fn. 58] -- and the sections of
the Alaska Constitution that establish the policy of "encourag[ing]
. . . the development of [State] resources by making them available
for maximum use consistent with the public interest"and mandate
application of the "sustained yield"principle. [Fn. 59]
Planning how to translate those broad commands into
policies, programs, and allocations of money and personnel is a
quintessential "discretionary function." The prospect of having to
apply the passages that the Bradys cite as tort standards reminds
us of why we treat choices involving the assessment of competing
priorities and allocation of scarce resources as discretionary
functions. [Fn. 60] The DNR commissioner and his or her
subordinates have a duty to make those policy-level decisions, but
the Bradys cannot sue the State in tort over the decisions they
make. The proper remedies for unwise or unduly timid
decisionmaking at that level are electoral, not judicial. We thus
conclude that the State is immune from the Bradys' tort claims
regarding its management of its forests and response to the beetle
epidemic. (We do briefly comment in the margin, however, on two of
those claims. [Fn. 61])
Looking beyond the tort claims to which the State is
immune, we note that the Bradys' request that we enjoin the State
to follow the Constitution and forestry laws is meritless. The
State is already obliged to do so. To that pre-existing duty, an
injunction to follow the law would only add, at the remedial level,
the possibility of contempt sanctions. It would not provide a
cause of action to circumvent discretionary-function immunity. Nor
would it provide the workable legal standard to evaluate the
State's performance whose absence is the reason for that immunity.
The Bradys offer no authority for their argument that,
since the State holds public lands as a "trustee"under Alaska's
Public Trust Doctrine, and since a private trustee can be subject
to an accounting to the beneficiaries for allowing waste of the
trust corpus, the State can thus by analogy be liable in damages
under the Public Trust Doctrine for letting beetles destroy the
arboreal corpus of the public trust. The Bradys point to no
opinion applying the Public Trust Doctrine thus. Finally, they
have waived, for failure to develop, any argument that the State
has wronged them by finding unconstitutional, and so declining to
enforce, two statutes adopted by a 1982 ballot initiative that
direct the State to manage federal lands located within Alaska.
[Fn. 62]
E. Terry Brady Has Not Adequately Argued That Officials'
Post-Litigation Treatment of Him Violated Equal Protection, or
Offered Admissible Evidence That It Comprised Unconstitutional
Retaliation.
1. Facts and proceedings
In April 1994, after the Bradys had filed suit, Terry
Brady [Fn. 63] was perusing public documents in DNR offices when
Boutin ordered him to "get the hell out of the forestry office."
Boutin made that order pursuant to AS 09.25.122, which,
inexplicably, limits access to otherwise public records by
"person[s] involved in litigation"with the State, requiring them
to use discovery procedures to obtain documents rather than simply
reviewing and copying those that are already publicly available.
[Fn. 64]
Brady wrote Assistant Attorney General Kevin Saxby, who
was handling the litigation for the State, about the incident and
the scope of AS 09.25.122. Brady filed the letter with the court
and, on June 9, 1994, asked it "to define the term 'litigant' and
when it [applies to limit the right] to receive, view or otherwise
use official state documents." He complained that officials were
denying him access to all public forestry records, even if
unrelated to his suit, which kept him from working as a forestry
professional. The court did not address the request. In a
June 13, 1994, letter about discovery scheduling, Saxby told Brady
that he had advised Forestry to let Red Smith use public records
without using formal discovery procedures, because Smith had
promised not to use such records in the litigation. Saxby offered
to advise Forestry similarly as to Brady if he too would commit in
writing to "limit [his] records searches to purposes other than
discovering evidence for use in [his] litigation." Brady
apparently never responded to this offer. [Fn. 65]
In July 1994 the DNR Public Information Center's director
told Brady that "counsel"had told her that Brady "is in litigation
with the state and [that] the public records statutes require him
to use litigation discovery procedures." She denied him the usual
open access to various public materials "that related, in one form
or another, to DNR's management of the State's timber resources."
In June 1995 Red Smith asked Brady to resign the presidency of a
forest-products corporation that Smith chaired. Smith mentioned an
"order of the Attorney General's office"whereby Brady was
"considered, apparently for all intents and purposes, as a
'litigant,'"and which had "severely reduced"his "effectiveness as
the president."
In September 1995, after the first partial summary
judgment, Brady amended his complaint to add Boutin and Peterson as
defendants, recount the above facts, and allege a "tortious . . .
denial of constitutionally established inherent rights." In
opposing the State's motion for summary judgment on the Bradys'
remaining claims, Terry argued that there were genuine disputes of
fact material to this claim. He appended an affidavit "concerning
effects of alleged tortious conduct by defendants resulting in loss
of potential income and professional status as result of filing
suit against State of Alaska."
In June 1996, after learning that the court had mislaid
his June 1994 request for a definition regarding AS 09.25.122,
Brady filed a new motion asking the court to declare that the
statute makes one a "party in litigation"who must use discovery to
review public records only "to the extent that 'litigation' is
narrowly defined."
Brady filed affidavits alleging retaliatory acts by State
officials. His affidavit related the ban on access to public
records and its effect on his livelihood. He also affied that he
believed that officials had ordered State employees, and pressured
forestry professionals, not to associate with him. Golden affied
that Boutin had asked him to convey to Brady a threat to protract
the litigation. Smith affied that Saxby had threatened him with
criminal prosecution if he gathered public records for Brady.
Boutin and Saxby each denied the allegations in affidavits. Brady
filed most of the above items in support of his declaratory-
judgment motion, but did refer to many of them in opposing summary
judgment as to his constitutional-tort claim.
In July 1996 the court denied Brady's declaratory-
judgment motion, finding the proposed order "not helpful"and
AS 09.25.122 "clear on its face." When the court granted the
State's final partial-summary-judgment motion in October 1996, it
thereby dismissed Terry's constitutional-tort claim. It made no
relevant findings of fact or conclusions of law. [Fn. 66]
2. Discussion
Brady's complaint about State officials' response to his
lawsuit seems to incorporate two overlapping theories, each of
which could be a constitutional-law claim. The first theory is
that the broad application of AS 09.25.122 violated the Alaska
Constitution's guarantee of "equal rights, opportunities, and
protection under the law"[Fn. 67] by denying Brady, because he was
involved in litigation with the State, the same right of access as
other citizens to public records unrelated to that litigation. The
second theory is that, through an intentionally overbroad denial of
access to records, and the other alleged acts noted above, State
officials tortiously retaliated against Brady for exercising his
constitutional right of access to the courts. We conclude that
Brady has waived the first theory by failing adequately to develop
it, and that, even with all reasonable inferences drawn in his
favor, the State is entitled to judgment as a matter of law on the
second theory.
a. Equal protection
An equal-protection challenge to AS 09.25.122 is not, at
first blush, implausible. But Brady simply has not developed a
legal argument elaborating that challenge. After his opening brief
argued that Boutin and Saxby's "broad interpretation of the terms
'litigant' and 'litigation'"denied him "equality before the law,"
the State cogently replied that he did not claim to have been
"treated differently from any other person." That rebuttal is not
entirely correct. Brady's opening brief does contrast the
defendants' broad application of AS 09.25.122 to him with our
holding in a 1991 case involving a Supreme Court justice's contact
with the governor regarding a lawsuit that involved the justice's
private business interests. [Fn. 68] Brady read our opinion to
indicate that "contact with state officials (outside of pending
litigation) was not . . . improper,"and concluded that the State
was thus treating "private citizens involved in legal disputes with
the State . . . 'differently' than members of the judiciary."
In the judicial-conduct case, however, we held that the
justice had sanctionably created an appearance of impropriety by
meeting with the governor to ask him to intervene in ongoing
litigation between the State and a corporation in which the justice
had interests. [Fn. 69] Brady does not specify any part of the
opinion that defends judges' rights to consult with State officials
on matters unrelated to pending litigation; the opinion certainly
does not discuss the scope of the term "litigation"as it might be
used to measure such a right. The opinion simply did not involve
equal-protection analysis; indeed, it stressed that canons of
judicial ethics "limit judges' activities in a fashion that is not
required of other citizens."[Fn. 70] Brady's opening brief offers
no other support for an equal-protection claim, and his reply brief
does not develop it. Despite our solicitude for pro se litigants,
we must conclude that he has waived the claim by failing to brief
it adequately. [Fn. 71]
b. Unconstitutional retaliation
Brady also argues that officials tortiously retaliated
against him for exercising his constitutional right of access to
the courts. He thus seeks damages under 42 U.S.C. sec. 1983 for a
violation under color of state law of his rights under the First
and Fourteenth Amendments to the federal constitution. As we
discuss in the margin, Boutin is the only defendant as to this
claim. [Fn. 72]
In challenging the summary judgment on this claim, Brady
argues that Golden's and Boutin's conflicting affidavits regarding
Boutin's alleged threat "create[d] an issue of material fact"; the
State itself has acknowledged that Saxby's and Smith's affidavits
create a genuine dispute about Saxby's alleged threat. The parties
do not genuinely dispute any facts about the denial of access to
public records -- except its motive.
Brady's legal support comprises Harrison v. Springdale
Water & Sewer Commission, [Fn. 73] an arguably relevant federal
circuit-court opinion, albeit one whose facts greatly differ from
those alleged here. The Harrisons sued the Commission over a sewer
discharge onto their land; the Commission retaliated by conspiring
to force them to sell their land by threatening to condemn it on a
pretext. [Fn. 74] The court noted that the right of access to the
courts is "'one aspect of the [First Amendment] right to petition
[government for the redress of grievances].'"[Fn. 75] It held
that federal law -- which governs Brady's sec. 1983 claim [Fn.
76] --
makes "clear that state officials may not take retaliatory action
against an individual designed either to punish him for having
exercised his constitutional right to seek judicial relief or to
intimidate or chill his exercise of that right in the future."[Fn.
77] Harrison and other federal opinions indicate that retaliatory
intent makes an official act unconstitutional even if the target
does not succumb by ceasing his or her protected activity; [Fn. 78]
"even if the act, when taken for a different reason, would have
been proper"; [Fn. 79] and even if the act is but a threat of
retaliation that is not carried out. [Fn. 80]
Brady has alleged four retaliatory acts. One is the
intentionally overbroad application of the litigation-disclosure
statute to harm his business and professional interests (or just to
harass him). The second is Boutin's threat, via Golden, to
protract any litigation. The third is Saxby's threat to prosecute
Smith. The fourth is a set of acts: ordering State officials, and
pressuring private forestry professionals, not to associate with
Brady. Brady offered no admissible evidence to support that set of
allegations, as we discuss in the margin, [Fn. 81] so we disregard
it.
The third alleged act, Saxby's threat, cannot support a
claim for unconstitutional retaliation, for the simple reason that
Saxby is not a defendant. Any threat that he made to Smith could
only be evidence of a conspiracy to retaliate against Brady, which
could support an inference that Boutin shared a retaliatory intent
and acted thereon. Any genuine dispute about Saxby's exchange with
Smith is thus too slightly and indirectly relevant to be "material"
to Brady's sec. 1983 claim against Boutin.
The second alleged act is Boutin's comment that, as
Golden paraphrased it, if Brady sued, "the [S]tate would protract
the legal challenge to its fullest extent." Golden affied that he
had "no question . . . that this was a threat to Mr. Brady to use
the [State's] unlimited resources to bury Mr. Brady in the legal
process and caus[e him] excessive . . . expense." In reviewing the
summary judgment, we are bound to assume, despite Boutin's denial,
that he did in fact say that the State would "protract the legal
challenge to its fullest extent."
We are not bound, however, to conclude that Golden's
interpretation of that comment, even though it appears in Golden's
affidavit, is a reasonable inference that we must draw in Brady's
favor. The most natural reading of Boutin's comment is that, if
Brady sued, the State would defend its interests fully, but within
the bounds of Civil Rule 11. [Fn. 82] Defending a lawsuit fully
yet fairly cannot constitute unconstitutional retaliation against
the person who filed the suit. Golden, however, interpreted
Boutin's comment more direly, as not just a prediction that the
State would fully defend itself, but a threat to protract the
litigation in bad faith so as to prevail by exhausting Brady's
resources. While such conduct, or a threat thereof, could well be
unconstitutional retaliation, it is an extreme reading of Boutin's
comment to see it as such a threat.
Golden, however, witnessed Boutin's manner and tone; we
did not. A factfinder surely could reject Golden's inference as
unreasonable; indeed, we think it a close question whether Golden's
affidavit is so conclusory as to deserve no weight at all for
summary-judgment purposes. [Fn. 83] But giving Brady, a pro se
litigant facing summary judgment, every benefit of the doubt, we
will assume that the affidavit is entitled to some weight, and that
a reasonable factfinder would not be bound to reject Golden's
inference. Brady's interpretation of Boutin's comment as a threat,
however, is tenuous; it was at most a very equivocal, indirect
threat. It was, moreover, neither carried out, nor effective in
deterring Brady, nor made by the official who would direct the
State's litigation. We acknowledge that federal courts have held
that the fact that a threat is not carried out, or that it does not
deter a litigant, does not prevent it from supporting a cause of
action for unconstitutional retaliation. [Fn. 84] We conclude,
however, that those factors can contribute to making a threat
insufficient to support a cause of action, and that, in this case,
given that Boutin's threat was at most equivocal and indirect, they
make that threat de minimis as a matter of law. It is not
significant enough to support a cause of action. It can at best
provide supporting evidence of a retaliatory intent if some other
alleged retaliatory act is sufficiently serious to support a claim.
The remaining alleged act is applying AS 09.25.122
overbroadly so as to deny Brady access to all public forestry
records. Given that Brady's suit very broadly challenged the
State's management of south-central Alaskan forests, the breadth of
public records to which officials denied Brady the usual public
access could reflect a plausible, good-faith interpretation of what
AS 09.25.122 directed. If, however, Boutin ordered or conspired
with Saxby to order a broader denial of access than he in good
faith believed that AS 09.25.122 required -- and did so with a
retaliatory intent to harass Brady or impair his livelihood -- such
conduct could well comprise unconstitutional retaliation.
We conclude, however, that Saxby's letter offering to
permit Brady access to all public records, if Brady would commit in
writing not to use such access to gather documents for litigation,
rebuts any inference that officials were acting with retaliatory
intent. Given Saxby's offer, Boutin did not unconditionally deny
Brady access to public records, but merely denied him access until
he promised not to use that access to gather evidence. Boutin and
Saxby merely required him, in other words, to promise to respect
the purpose of AS 09.25.122. Indeed, giving Brady access to all
records regardless of their relevance to his suit, if he only
promised not to misuse that access, would relax the literal
requirements of AS 09.25.122. The statute refers to public records
"used for, included in, or relevant to litigation . . . involving
a public agency"and directs in mandatory language that "with
respect to a person involved in litigation [with a public agency],
the records sought shall be disclosed in accordance with the rules
of procedure applicable in a court." A ban on the usual access to
public records pending a promise not to misuse that access was a
plausible, good-faith, commonsensically fair interpretation of
AS 09.25.122 and cannot, as a matter of law, support a reasonable
inference of retaliatory intent.
We thus affirm summary judgment as to Brady's
unconstitutional-retaliation claim.
IV. CONCLUSION
We AFFIRM the judgment in all respects.
FOOTNOTES
Footnote 1:
The Bradys litigated most of the superior court proceedings,
and all of this appeal, pro se. Their thorough briefs and
admirable performance at oral argument leave no doubt that they
bring their claims with diligence, zeal, and intelligence, and a
sincere belief that the State has wronged them individually, and
its citizens generally. Unfortunately, though, they have
translated their complaints into a broad array of common-law,
equitable, statutory, and constitutional claims. Some have
arguable merit, and the Bradys make many good isolated points,
while others are plainly without merit. Because of the way in
which the Bradys have presented the case, our opinion is long,
though most of the issues are not close. We write at length in
order to fairly develop, before ultimately rejecting, the arguably
meritorious claims that the Bradys have identified, yet were unable
themselves to develop fully, and in order to explain why some of
their other claims fundamentally misconstrue various doctrines.
Footnote 2:
See AS 38.05.115.
Footnote 3:
See 11 AAC 55.040.
Footnote 4:
See AS 38.05.112(a).
Footnote 5:
After the court issued its final judgment, the Bradys opposed
its award of attorney's fees, apparently claiming to be public-
interest litigants. The court affirmed the award. The Bradys did
not make attorney's fees one of their forty points on appeal.
Their briefs cursorily challenge the award, but their only argument
as to why the court abused its discretion is that they had
"standing, cause[,] and responsibility"to sue. This is far from
adequate. See, e.g., Peterson v. Mutual Life Ins. Co., 803 P.2d
406, 411 n.8 (Alaska 1990) (finding claim waived where appellant
mentioned it in brief but "advanced [no] legal argument as to why
the court erred."). Despite our solicitude for pro se appellants,
we must hold that the Bradys have waived this issue by failing to
develop it.
Footnote 6:
See, e.g., Sever v. Alaska Pulp Corp., 931 P.2d 354, 357 n.2
(Alaska 1996).
Footnote 7:
See generally, e.g., Maddox v. River & Sea Marine, Inc.,
925 P.2d 1033, 1035 (Alaska 1996).
Footnote 8:
See Alaska R. Civ. P. 56(e) and, e.g., West v. City of St.
Paul, 936 P.2d 136, 140 (Alaska 1997); Broderick v. King's Way
Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991).
Footnote 9:
938 P.2d 1002 (Alaska 1997).
Footnote 10:
See id. at 1006; State v. Johnson, 779 P.2d 778, 780 (Alaska
1989) (citing Howarth v. First Nat'l Bank of Anchorage, 596 P.2d
1164, 1167 (Alaska 1979)).
Footnote 11:
Contrary to the State's suggestion, the lack of a price term
is not fatal. The alleged contract is for a sale of goods. See
AS 45.02.107(b) ("A contract for the sale . . . of timber to be cut
is a contract for the sale of goods within this chapter . . . .").
Courts can enforce sale-of-goods contracts with open price terms if
the parties so intended. See Davis, 938 P.2d at 1008 n.6 (citing
AS 45.02.305).
Footnote 12:
See id. at 1008.
Footnote 13:
Id. at 1009.
Footnote 14:
See AS 38.05.115(a) ("The [DNR] commissioner shall determine
the timber . . . to be sold, and the limitations, conditions, and
terms of sale. . . . The commissioner may negotiate sales of
timber . . . without advertisement and on the limitations,
conditions, and terms that are considered to be in the best
interests of the state."). Terry described his application as
"pursuant to AS 38.05.115."
Footnote 15:
Restatement of Contracts sec. 72 (1932) (re-restated, slightly
revised, as Restatement (Second) of Contracts sec. 69 (1979)).
Footnote 16:
The Bradys argue that "[i]f Boutin had disagreed . . ., then
he had a duty to respond, either then, or as soon as he understood
Smith's statements."(emphasis added). Smith made his comment on
October 4. Peterson noted his impression that "[Smith] thinks he
has a contract,"and discussed the meeting the next day with
another Forestry official, who "reemphasized that [Boutin] needs to
address the negotiated [sale] issue soon." Two days later,
Boutin's superior, Commissioner Noah, told the Bradys that DNR
might reject their applications. While the Bradys' standard is not
the law -- at least, not contract law -- the State seems in any
case to have met it.
Footnote 17:
See Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska
1989).
Footnote 18:
See Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281-82
& n.1 (Alaska 1985).
Footnote 19:
See generally, e.g., Eric Mills Holmes, Restatement of
Promissory Estoppel, 32 Willamette L. Rev. 263, 271 86 (1996).
Footnote 20:
Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142
(Alaska 1996) (requiring "that an actual promise was made and
itself induced the action or forbearance in reliance thereon"); see
also Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 103 (Alaska 1992)
(requiring "actual promise"and affirming summary judgment because
"[w]e are not persuaded that even with the factual inferences
favoring Eufemio, the [defendant]'s language indicates a promise").
We have used Professor Corbin's test for promissory
estoppel, which includes the "actual promise"requirement, in
several cases besides Reeves and Eufemio since State v. First
National Bank of Ketchikan, 629 P.2d 78, 81 (Alaska 1981) (quoting
1A Arthur Corbin, Corbin on Contracts sec. 200, at 215 21 (1963)).
See James v. State, 815 P.2d 352, 356 (Alaska 1991); Crook v.
Mortenson-Neal, 727 P.2d 297, 300-01 (Alaska 1986); Zeman, 699 P.2d
at 1284; Alaska Bussell Elec. Co. v. Vern Hickel Constr. Co., 688
P.2d 576, 579 (Alaska 1984); Glover v. Sager, 667 P.2d 1198, 1202
(Alaska 1983). We are aware that many jurisdictions, perhaps a
majority, have relaxed or abandoned the traditional rule that
promissory estoppel requires a promise sufficiently definite and
certain to constitute an offer or acceptance under contract law.
See Holmes, supra note 19, at 286-90 & n.58. Without briefing on
this widely disputed issue, however, we are not prepared to alter
our long-standing rule. We note, moreover, that to find the
Bradys' claim viable would require us not merely to relax but to
abandon the actual-promise requirement, for we conclude as a matter
of law not merely that Peterson's words convey a promise too
indefinite or uncertain to be an "acceptance"in contract terms,
but that his words simply were not promissory.
Footnote 21:
633 P.2d 256, 261 63 (Alaska 1981).
Footnote 22:
If the State solicits bids for a public contract, it impliedly
promises to consider them fairly and in good faith, and is liable
for bid-preparation costs if it rejects them arbitrarily and
capriciously. See id. at 263 & n.7, and, e.g., Dick Fischer Dev.
No. 2 v. State, Dep't of Admin., 838 P.2d 263, 266 (Alaska 1992)
(clarifying that liability turns on whether officials acted in bad
faith; had a reasonable basis for their decision; had broad or
narrow discretion; and broke any laws). We have extended King from
the disappointed-losing-bidder fact pattern to a case -- like this
one, at first glance -- where the State solicited bids but then
canceled the project. See Dick Fischer, 838 P.2d at 266 n.5.
But King does not apply here; it applies if the State
indicates that it will award a contract and solicits bids, inducing
firms to invest resources in preparing bids in reasonable reliance
on the State's implied promises to carry out the project and to
give the contract to whoever's bid is best. See King, 633 P.2d at
261 62 (adopting Heyer Prods. Co. v. United States, 140 F.Supp.
409, 412 13 (Ct. Cl. 1956)). DNR did not do that here; it only
promised to consider making negotiated sales, and to entertain six
applications to be purchasers if DNR decided that to make sales at
all would best serve the public interest. The Bradys' investment
of time and effort is thus unlike bidders' invited reliance on the
State's clear decision to carry out a project in King and Dick
Fischer.
Footnote 23:
See, e.g., Venture Assocs. Corp. v. Zenith Data Sys. Corp., 96
F.3d 275, 277 78 (7th Cir. 1996) (Posner, C.J.) (finding "a binding
agreement to negotiate in good faith toward the formation of a
contract of sale") and, generally, E. Allan Farnsworth,
Precontractual Liability and Preliminary Agreements: Fair Dealing
and Failed Negotiations, 87 Colum. L. Rev. 217, 263 69 (1987); id.
at 266 nn.205 07 (collecting cases).
Footnote 24:
Compare, e.g., Prenger v. Baumhoer, 939 S.W.2d 23, 26 28 (Mo.
App. 1997) (discussing promissory-estoppel claim for expenses in
reliance on promise to negotiate, reviewing split in caselaw, and
rejecting theory) with, e.g., Neiss v. Ehlers, 899 P.2d 700, 703 07
(Or. App. 1995) (same, but concluding that "better reasoning
supports the conclusion that promissory estoppel can apply . . . to
promises that are indefinite or incomplete, including agreements to
agree"). Some courts address such claims under a contract rather
than a promissory-estoppel theory. See, e.g., Venture Assocs., 96
F.3d at 277 78; cf. King, 633 P.2d at 263 & n.6 (treating claim for
bid-preparation costs under implied-contract theory, and doubting
validity of promissory-estoppel theory).
Footnote 25:
See, e.g., Goodstein Constr. Corp. v. City of N.Y., 548
N.Y.S.2d 393, 397 99 (N.Y. Sup. 1989) (dismissing claim for
expectation damages but not for reliance damages) (citing cases
from four jurisdictions), aff'd 604 N.E.2d 1356, 1359 & n.2 (N.Y.
1992); see generally, Farnsworth, Precontractual Liability, supra
note 23, at 267 ("[T]he appropriate remedy is not damages for the
injured party's lost expectation under the prospective ultimate
agreement but damages caused by [its] reliance on the agreement to
negotiate."); cf. King, 633 P.2d at 263 & n.8 (limiting damages to
bid-preparation costs, and excluding lost profits on contract).
Footnote 26:
See, e.g., Arcardian Phosphates, Inc. v. Arcardian Corp., 884
F.2d 69, 73 74 & n.2 (2d Cir. 1989) (reversing dismissal of
promissory-estoppel claim based on promise to negotiate in good
faith, strongly suggesting that trial court on remand limit damages
to out-of-pocket costs); but compare Venture Assocs., 96 F.3d at
278 79 (Posner, C.J.) (holding expectation damages available in
principle, but usually unprovable); with id. at 280 81 (Cudahy, J.,
concurring) (arguing only reliance damages available in principle).
Footnote 27:
See Davis, 938 P.2d at 1006 08 (affirming superior court's
refusal to enforce failed agreement to negotiate settlement by
crafting settlement agreement and imposing it on one party).
Footnote 28:
The Bradys argue that the letter tortiously "misrepresented"
the facts because, for example, there was in fact no "competitive
interest"in the timber. This argument misconstrues the nature of
tort law; a misrepresentation is only actionable if it causes harm.
See, e.g., Barber v. National Bank of Alaska, 815 P.2d 857, 862
(Alaska 1991) (requiring proof of damages resulting from reliance
on misrepresentation). The State's decision to reject the Bradys'
applications harmed them -- and if made in bad faith, could
possibly have been actionable -- but its act of stating its reasons
for rejecting their applications did not harm them. Any dispute,
however genuine, about the basis or sincerity of those reasons is
simply immaterial to a tort claim.
Footnote 29:
See Goodstein Constr. Co. v. City of N.Y., 604 N.E.2d 1356
(N.Y. 1992); Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900
(Colo. 1982).
Footnote 30:
See Goodstein, 604 N.E.2d at 1357 58; Vigoda, 646 P.2d at
902 03.
Footnote 31:
See Goodstein, 604 N.E.2d at 1359 & n.2; Vigoda, 646 P.2d at
904 05.
Footnote 32:
See Goodstein, 604 N.E.2d at 1359 & n.2. (The Vigoda court
merely reversed a dismissal without addressing the issue of
damages. See 646 P.2d at 905.)
Footnote 33:
See Goodstein, 548 N.Y.S.2d 393, 399 (N.Y. Sup. 1989), aff'd,
604 N.E.2d at 1359.
Footnote 34:
See Vigoda, 646 P.2d at 904.
Footnote 35:
See AS 09.50.250 (preserving State's sovereign immunity from
suits arising from performance of discretionary functions);
AS 09.65.070(d)(2) (giving municipalities same immunity); see,
e.g., Integrated Resources Equity Corp. v. Fairbanks N. Star
Borough, 799 P.2d 295, 301 (Alaska 1990) (applying
AS 09.65.070(d)(2) to choice of broker to invest Borough funds).
Footnote 36:
See Davis, 938 P.2d at 1006 07. The alleged timber-sale
contract could include an open price term under the UCC, see supra
note 11, but professional services do not come within the UCC.
Footnote 37:
See AS 36.30.100 .270.
Footnote 38:
See, e.g., White v. Alaska Ins. Guar. Ass'n, 592 P.2d 367, 371
(Alaska 1979) (describing quasi-contract as legal fiction "'based
on the maxim that one who is unjustly enriched at the expense of
another is required to make restitution,'"and noting that "an
agreement between the parties is not . . . necessary.") (quoting
Hill v. Waxberg, 237 F.2d 936, 939 (9th Cir. 1956)).
We refer to Terry's cause of action as quantum meruit.
"Courts generally treat actions brought upon theories of unjust
enrichment, quasi-contract, contracts implied in law, and quantum
meruit as essentially the same." Alaska Sales & Serv., Inc. v.
Millet, 735 P.2d 743, 746 n.6 (Alaska 1987).
Footnote 39:
See Millet, 735 P.2d at 746.
Footnote 40:
[Fn. 85] [Fn. 86] [Fn. 87]See id. ("[T]he most significant
requirement . . . is that the enrichment . . . be unjust; that is,
the defendant must receive a true windfall or 'something for
nothing.'").
Footnote 41:
See Sparks v. Gustafson, 750 P.2d 338, 342 43 (Alaska 1988).
Footnote 42:
Darling v. Standard Alaska Prod. Co., 818 P.2d 677, 680 n.6
(Alaska 1991) (quoting Bloomgarden v. Coyer, 479 F.2d 201, 211
(D.C. Cir. 1973)).
Footnote 43:
See Restatement of Restitution sec. 57 (1937) (providing that
one
who "manifest[s] that he does not expect compensation [for a
benefit] is not entitled to restitution merely because his
expectation that the other will . . . enter into a contract with
him is not realized"); and, e.g., Peko Oil USA v. Evans, 800 S.W.2d
572, 576 (Tex. App. 1990) (holding A not entitled to quasi-contract
recovery for introducing B to business opportunity where A did so
not in hopes of payment, but in hopes of gaining contract to market
B's output resulting from new opportunity); id. at 577 78
("[C]ourts considering the question have held that the expectation
of a future business advantage or opportunity cannot [support] a
cause of action in quantum meruit.") (collecting cases);
Bloomgarden v. Coyer, 479 F.2d 201, 211 & n.60 (D.C. Cir. 1973)
(declining to mandate compensation where "services were rendered
simply in order to gain a business advantage") (collecting cases).
Footnote 44:
In one case, Hill, a developer, asked Waxberg, a contractor,
to help prepare a building project, promising to give Waxberg the
contract if financing materialized. See Hill v. Waxberg, 237 F.2d
936, 938 (9th Cir. 1956). Waxberg did the work, and the financing
went through, but he and Hill could not agree on a contract, so
Hill hired another contractor. The court awarded Waxberg
restitution of the value of his work. See id. at 938 40; but see
Farnsworth, Precontractual Liability, supra note 23, at 231 33
(discussing Hill approvingly but noting that, "[d]espite the appeal
of restitution, it has been largely neglected as a basis of
precontractual liability").
Footnote 45:
Id. at cmt. a.
Footnote 46:
Restatement (Second) of Restitution, Tent. Draft No. 1,
sec. 6(2)
(1983) (allowing restitution if defendant's "conduct in negotiating
for a gain or advantage results in a benefit to him and a loss or
expense to another . . . if, in the absence of compensation to the
other, the conduct appears unconscionable in purpose or effect.").
Footnote 47:
See id., cmt. b:
[W]hen the [defendant] cannot be charged with
a violation of duty, and no agreement has been concluded between
the parties, the fact that one of them has gained by the course of
bargaining does not alone signify that he [has been] unjustly
enriched. . . . [Negotiators] are often aware that burdensome
effort and outlay on one side is placed at risk. If it induces the
other party to contract with the venturer, he may reap a
correspondingly large gain; if not, he must hope for success in
another negotiating process. The assumption of risk is sometimes
explicit, sometimes an aspect of the line of business concerned
(analogous to a usage of trade), and sometimes implicit in the
arm's-length relation between the parties.
Footnote 48:
See AS 09.50.250(3). Sovereign immunity does not protect
Peterson in his individual capacity. See Aspen Exploration Corp.
v. Sheffield, 739 P.2d 150, 162 n.29 (Alaska 1987).
Footnote 49:
See Barber, 815 P.2d at 862 (noting that a claim for "knowing
misrepresentation"requires, inter alia, "intention to induce
reliance, justifiable reliance, and damages.") (citing Restatement
(Second) of Torts sec. 525 (1976)).
Footnote 50:
See DeLisio v. Alaska Superior Ct., 740 P.2d 437, 440 41
(Alaska 1987) (holding that professional services constitute
"property"under Alaska Constitution).
Footnote 51:
See AS 38.05.500 .505.
Footnote 52:
Freeman v. State, 705 P.2d 918, 920 (Alaska 1985).
Footnote 53:
Id.
Footnote 54:
See, e.g., State, Dep't of Transp. & Pub. Facils. v. Sanders,
944 P.2d 453, 458 59 (Alaska 1997) (discussing cases).
Footnote 55:
Id. at 457.
Footnote 56:
See AS 41.15.010 .950, 41.17.010 .950.
Footnote 57:
AS 41.15.010.
Footnote 58:
AS 41.17.010.
Footnote 59:
See Alaska Const. art. VIII, sec.sec. 1, 4.
Footnote 60:
See Industrial Indem. Co. v. State, 669 P.2d 561, 565 (Alaska
1983); see also Sanders, 944 P.2d at 458 59 ("Because the governing
regulation provides no standards that a court might use to analyze
the . . . decision, [that] decision is protected by the
discretionary function exception . . . .").
Footnote 61:
The Bradys misconstrue the doctrine of res ipsa loquitur in
thinking the State's "exclusive control"of forests (including bark
beetles) equivalent to exclusive control of a dangerous
instrumentality under that doctrine. The superior court was right
as a matter of law to note that the State is not in control of the
bark beetle. Cf. Carlson v. State, 598 P.2d 969, 973 (Alaska 1979)
(noting "State's conceded lack of control over attacking bear"and
approvingly noting that plaintiffs did not argue that State's
"inherent possession or control"of wild animals made State liable
in tort for attack). We find equally meritless the Bradys' theory
that, because AS 41.15.020 directs the DNR commissioner to protect
forests from destructive agents, the Department is negligent per se
for failure to control the epidemic. That theory would, in effect,
make the State strictly liable for all harm to its forests.
Footnote 62:
See 1983 Formal Op. Att'y Gen. 27 (evaluating
AS 38.05.500 .505). The Bradys make policy arguments in favor of
the law, and a political-science critique of the decision not to
enforce it, but cite no legal authority for the propositions (1)
that AS 38.05.500 .505 is in fact constitutional; or (2) that it is
illegal for the State to find a law unconstitutional and not
enforce it (until a court orders it to).
Footnote 63:
These events and the legal claim to which they have given rise
concern only Terry Brady, not Steven Brady, and so we refer to
Terry simply as "Brady"throughout.
Footnote 64:
The litigation-disclosure provision, AS 09.25.122, reads in
part:
A public record that is subject to disclosure
and copying under [the Public Records Act,] AS 09.25.110 09.25.120
remains a public record subject to disclosure and copying even if
the record is used for, included in, or relevant to litigation
. . . involving a public agency, except that with respect to a
person involved in litigation, the records sought shall be
disclosed in accordance with the rules of procedure applicable in
a court . . . . In this section, "involved in litigation"means a
party to litigation or representing a party to litigation,
including obtaining public records for the party.
Footnote 65:
The record seems to contain no answer to Saxby's letter;
Brady's opening brief alleges none; and his reply brief does not
dispute the State's claim that he never responded.
Footnote 66:
The court made no findings or conclusions at all in granting
the second partial summary judgment. The court based its final
judgment on the findings and conclusions that it had adopted in
granting the first partial summary judgment in November 1994. Brady
had not yet made a constitutional-tort claim, so those findings do
not adjudicate that claim.
Footnote 67:
Alaska Const., art. I, sec. 1.
Footnote 68:
See Inquiry Concerning a Judge, 822 P.2d 1333 (Alaska 1991).
Footnote 69:
See id. at 1336 37, 1341 43 (holding that, where State-run
corporation was to conduct public hearing to decide whether to
accept agreement settling litigation between it and corporation in
which judge was officer, director, and shareholder, judge created
appearance of impropriety by privately meeting with governor to ask
him to stop State corporation's director from postponing hearing).
Footnote 70:
Id. at 1343 (discussing Alaska Code of Judicial Conduct).
Footnote 71:
Cf. A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (treating as
abandoned arguments that pro se appellant inadequately briefed and
failed to support with citations to legal authority).
Footnote 72:
Brady has sued Boutin and Peterson individually, but has not
alleged any retaliatory acts by Peterson; several of his
allegations, meanwhile, involve Saxby, whom he has not sued
individually. Only individual officials, and not the State, can be
liable in damages under sec. 1983. See Will v. Michigan Dep't of
State Police, 491 U.S. 58, 64 (1989). Boutin is thus the only
defendant potentially liable for unconstitutional retaliation.
Footnote 73:
780 F.2d 1422 (8th Cir. 1986).
Footnote 74:
See id. at 1424.
Footnote 75:
Id. at 1427 (quoting California Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972)).
Footnote 76:
See Van Sandt v. Brown, 944 P.2d 449, 452 n.5 (Alaska 1997)
(noting that federal, not state, law governs sec. 1983 claim in
state
court) (citing Howlett v. Rose, 496 U.S. 356, 375 76 (1990)).
Footnote 77:
Harrison, 780 F.2d at 1428 (collecting federal cases).
Footnote 78:
Id.
Footnote 79:
Matzker v. Herr, 748 F.2d 1142, 1150 51 (7th Cir. 1984).
Footnote 80:
See, e.g., Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994)
("[A] threat of retaliation is sufficient injury [to support a
First Amendment claim] if made in retaliation for an inmate's use
of prison grievance procedures."); Clark v. Township of Falls, 890
F.2d 611, 622 (3rd Cir. 1989) (presuming that threat alone can
support recovery); Davis v. Village Park II Realty, 578 F.2d 461,
464 (2d Cir. 1978) (affirming award of damages for threat that was
withdrawn); Silver v. Cormier, 529 F.2d 161, 162 63 (10th Cir.
1976) (affirming award of damages for threat that was not carried
out).
Footnote 81:
Brady affied that two people who do not work for the State
told him that officials had ordered State employees not to
associate with him. He alleged that this pressured private
forestry professionals not to associate with him. Saxby and Boutin
executed affidavits flatly denying any such order. The conflicting
affidavits, however, do not raise a genuine factual dispute, for
Brady's affidavit rests only on hearsay -- third- and fourth-party
descriptions of State officials' alleged words. Hearsay is
inadmissible to oppose summary judgment. See, e.g., Broderick v.
King's Way Assembly of God Church, 808 P.2d 1211, 1218 (Alaska
1991).
Footnote 82:
See Alaska R. Civ. P. 11 (requiring parties to certify that
all filings are "warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law, and
. . . not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless expense").
Footnote 83:
See, e.g., West v. City of St. Paul, 936 P.2d 136, 140 (Alaska
1997) ("Conclusory statements in opposing affidavits are not
sufficient to defeat a summary judgment motion.").
Footnote 84:
See supra notes 78-80.
Footnote 85:
Given the State's admission that it used Terry's work and the
conflicting affidavits as to whether it thereby received and
"appreciated"a benefit (i.e., saved time or money in drafting its
FLUP), summary judgment would very likely have been inappropriate
as to those quantum meruit factors, but our conclusion about the
third factor makes it unnecessary to resolve them.
Footnote 86:
Given the State's admission that it used Terry's work and the
conflicting affidavits as to whether it thereby received and
"appreciated"a benefit (i.e., saved time or money in drafting its
FLUP), summary judgment would very likely have been inappropriate
as to those quantum meruit factors, but our conclusion about the
third factor makes it unnecessary to resolve them.
Footnote 87:
Given the State's admission that it used Terry's work and the
conflicting affidavits as to whether it thereby received and
"appreciated"a benefit (i.e., saved time or money in drafting its
FLUP), summary judgment would very likely have been inappropriate
as to those quantum meruit factors, but our conclusion about the
third factor makes it unnecessary to resolve them.
