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Burcina v. City of Ketchikan (9/22/95), 902 P 2d 817
NOTICE: This opinion is subject to formal
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 99501-2084
or call (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
RICKY J. BURCINA, ) Supreme Court No. S-5893
v. ) Superior Court No.
) 1KE-90-102 CI
CITY OF KETCHIKAN, GATEWAY )
CENTER FOR HUMAN RESOURCES ) O P I N I O N
and RUSSELL A. HUFFMAN, JR., )
) [No. 4260 - September 22,
Appellees. ) 1995]
Appeal from the Superior Court of the
State of Alaska, First Judicial
Larry C. Zervos, Judge.
Appearances: Caroline B. Crenna and
Thomas W. Findley, Dillon & Findley,
P.C., Juneau, for Appellant. A. Fred
Miller and Kevin G. Miller, A. Fred
Miller, Attorneys at Law, Ketchikan, for
Appellees City of Ketchikan and Gateway
Center for Human Resources. Geoffrey G.
Currall, Keene & Currall, P.C.,
Ketchikan, for Appellee Russell A.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and
Ricky Burcina, who has a long history of mental
illness and substance abuse, set fire to the Gateway Mental
Health Drop-In Center and was subsequently convicted of
arson. Thereafter, Burcina filed suit against the Gateway
Center for Human Resources and his psychiatrist, Dr. Russell
Huffman, claiming that he had received negligent treatment
which aggravated his mental illness and caused him to set
the fire. Burcina appeals from the superior court's grant
of summary judgment in favor of both defendants. We affirm.
II. FACTS AND PROCEEDINGS
Following his release from prison in early 1986,1
Ricky Burcina began outpatient mental health care with
Gateway Center for Human Resources (Gateway), a department
of the City of Ketchikan. Burcina began seeing Dr. Wandal
Winn, a psychiatric consultant to Gateway, who prescribed
Navane (an antipsychotic medication) as part of Burcina's
treatment program. In February of 1987, Burcina requested
that his medication be reduced. Dr. Winn believed that it
was appropriate to begin to taper Burcina off his
antipsychotic medication because Burcina's mental condition
had stabilized and he was receiving vocational training that
required fine motor coordination.
Burcina began seeing Dr. Russell Huffman in June
of 1987.2 Dr. Huffman provided "talk therapy" to Burcina,
and may have had a role in monitoring Burcina's medication.
However, Burcina continued to consult with and have his
medication prescribed and monitored by Dr. Winn and Gateway.
In July 1987, Dr. Winn informed Burcina that he
could gradually reduce his medication with the goal of
completely discontinuing it in about sixty days. However,
by November, Dr. Winn became concerned about Burcina's
conduct and suggested that he restart the medication.
Burcina refused. Nancy Hunter, a social worker at Gateway,
also suggested that Burcina restart his medication, but he
again refused. Over the next several months, Dr. Huffman,
Dr. Winn, and Hunter continued to inform Burcina that he
should be taking his medication. However, Burcina refused
and thus became progressively more delusional.
On February 5, 1988, Burcina set fire to the
Gateway Mental Health Drop-In Center (Drop-In Center).
Burcina explained that he "thought that alien forces were
trying to capture and kill [him]," and that he "set fire to
the Drop-In Center in order to get the FBI's attention so
that the FBI could protect [him] and debrief [him]."
Burcina was charged with arson in the first degree.3
Thereafter, the superior court ordered a
psychological evaluation. Burcina revealed to the
psychologist that he had been abusing various substances
including street drugs prior to February 5. The
psychologist concluded that Burcina's psychotic episodes
were induced by substance abuse and indicated that he would
not be willing to make a diagnosis of schizophrenia "unless
it can be clearly proven that [Burcina] demonstrates
symptoms of schizophrenia on an outpatient basis when not
using euphorigenic or mind-altering street drugs." The
psychologist concluded that Burcina was competent to stand
trial. Burcina subsequently entered a plea of nolo
contendere to arson and was sentenced to eight years of
incarceration with five and one-half years suspended.
On February 2, 1990, Burcina filed suit against
Gateway and Dr. Huffman claiming that he had received
negligent treatment which aggravated his mental illness and,
during a psychotic episode, caused him to set fire to the
Drop-In Center. Burcina alleged that as a result of his
conviction for arson and subsequent imprisonment, he had
suffered and continues to suffer mental anguish, loss of
income, loss of enjoyment of life, and emotional distress.
Before trial, Gateway and Dr. Huffman moved for
summary judgment. The superior court granted Gateway's and
Dr. Huffman's motions holding that Burcina's claims are
prohibited by public policy. Specifically, the superior
court relied upon the general rule that
[a] person cannot maintain an action if,
in order to establish his cause of
action, he must rely, in whole or in
part, on an illegal or immoral act or
transaction to which he is a party.
Also, he cannot maintain a claim for
damages based on his own wrong or caused
by his own neglect, . . . or where he
must base his cause of action, in whole
or in part, on a violation by himself of
the criminal or penal laws.
1A C.J.S. Actions 29, at 386-87 (1985). Burcina now
A. Burcina's Claims are Prohibited by Public
This court has recognized the public policy
principle which precludes a person who has been convicted of
a crime from imposing liability on others for the
consequences of that antisocial conduct.5 Under this
court's previous decisions, recovery is precluded at the
"'very threshold of the plaintiff's application for judicial
relief.'" Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska
1991) (quoting Barker v. Kallash, 468 N.E.2d 39, 41-42 (N.Y.
The superior court granted summary judgment in
favor of Gateway and Dr. Huffman on the ground that
Burcina's suit is prohibited by public policy. On appeal,
Burcina argues that his suit is not barred because he was
insane at the time he committed the crime of arson. In
effect, Burcina requests that an exception be created to
Adkinson, Lord, Shaw, and Beilgard in the circumstance where
the person is insane at the time he or she commits the
This court first held that, as a matter of public
policy, a person who has been convicted of a crime is
precluded from imposing civil liability on others for the
consequences of his or her own criminal conduct in Adkinson
v. Rossi Arms Co., 659 P.2d 1236 (Alaska 1983). We held
that Adkinson, who was convicted of manslaughter for
shooting and killing a person with a shotgun, had no claim
for relief in tort against either the manufacturer or the
seller of the shotgun. Id. at 1240. In holding that
Adkinson's claims were barred by public policy, we stated
that "allowing a criminal defendant, who has been convicted
of an intentional killing, to impose liability on others for
the consequences of his own anti-social conduct runs counter
to basic values underlying our criminal justice system."
Id. Thus, we concluded that because Adkinson was convicted
based on his intentional conduct, he alone was responsible
for any resultant personal losses.
In Lord v. Fogcutter Bar, 813 P.2d 660, 663
(Alaska 1991), we held that Lord, who was convicted of
kidnapping, rape and assault which took place after he was
served more than fourteen drinks at the Fogcutter Bar, was
precluded from recovering in tort against the Fogcutter Bar.
Lord alleged that the Fogcutter was liable for the damages
he suffered as a result of his imprisonment because the
Fogcutter and its employee violated Alaska's dram shop
statute by selling Lord alcohol while he was a "drunken
person." Id. at 662. We noted that "[c]ourts have
consistently refused to aid those whose claims are based on
their own illegal acts," and held that Lord's claim was
barred for the same reason that summary judgment was
affirmed in Adkinson. Id. at 663.
In Shaw v. State, Department of Administration,
861 P.2d 566, 571 (Alaska 1993) (Shaw II), this court held
that the public policy principle enunciated in Adkinson and
Lord prevented recovery on the part of a plaintiff in a
professional malpractice action against his former defense
attorney where the plaintiff in fact engaged in the criminal
conduct with which he was charged. We noted our previous
holdings "that civil recovery should not be a tool for
shifting an individual's responsibility for the individual's
criminal acts." Id. As in Adkinson and Lord, we held "that
if plaintiffs engaged in the criminal conduct they are
accused of, then they alone should bear full responsibility
for the consequences of their acts, including imprisonment."
Id. at 572.
In Beilgard v. State, 896 P.2d 230 (Alaska 1995),
we held that Beilgard, who was convicted of violating
Alaska's game laws after requesting information and
assistance from State employees as to what permits were
required for his business, possessed no viable claim for
relief in tort against the State. Our holding in Beilgard
was grounded on the public policy principle enunciated in
Adkinson, Lord, and Shaw II. Id. at 233-34.
In recognizing and applying this public policy
principle, we have favorably cited two cases which are
factually similar to the present case.6 In Cole v. Taylor,
301 N.W.2d 766 (Iowa 1981), the Iowa Supreme Court held that
Cole was prohibited from recovering in tort from her
psychiatrist, Taylor, on her claim that Taylor negligently
failed to prevent her from committing murder. Cole shot and
killed her former husband, and was subsequently charged,
tried and convicted of first-degree murder. Id. at 766.
Cole alleged that during her course of treatment, Taylor
became aware that she had violent inclinations and was
thinking about killing her former husband. Id. at 767.
Cole claimed that Taylor failed in his treatment of her,
that he failed to restrain her by hospitalization, and that
he failed to warn her former husband of any impending
danger. Id. After recognizing the general policy rule that
a person should not be able to rely on an illegal act to
maintain a cause of action, the lower court dismissed Cole's
suit. The Supreme Court of Iowa held that Cole's
responsibility for her criminal conduct was established by
her murder conviction, and "that it would be, plainly and
simply, wrong as a matter of public policy to allow
recovery." Id. at 768.
Likewise, in Glazier v. Lee, 429 N.W.2d 857, 860
(Mich. App. 1988), the Michigan Court of Appeals followed
Cole and held that Glazier was precluded from recovering in
tort from his psychologist, Lee, on his claim that Lee
negligently failed to prevent him from committing murder.
Glazier shot and killed his girlfriend and was subsequently
convicted of voluntary manslaughter. Id. at 858. Glazier
claimed that Lee negligently failed to medicate or
hospitalize him, suggested violence to him when he was in a
volatile, dependent state of mind, and failed to warn
Glazier's girlfriend of his potential for violence. Id.
The court held that Glazier's claim was barred based on the
rule articulated in Cole. Id. at 859. The controlling
factor was Glazier's own criminal responsibility as
evidenced by his voluntary manslaughter conviction. Id.
Based on the foregoing, we conclude that the
public policy principle which precludes a person who has
been convicted of a crime from imposing liability on others
for the consequences of his or her own antisocial conduct
applies here. Thus, we hold that Burcina's claims against
Gateway and Dr. Huffman are barred.7
B. Burcina's Plea of Nolo Contendere Has
Collateral Estoppel Effect
Burcina also asserts that summary judgment was
inappropriate because there was a genuine issue of material
fact as to whether he was legally insane when he set the
fire. He argues that because he was insane, the policies
discussed in the previous section should not preclude his
claim. See Boruschewitz v. Kirts, 566 N.E.2d 1112 (Ill.
App. 1990). However, because a necessary element of
Burcina's criminal conviction for arson was that he have the
requisite intent,8 we conclude that he is collaterally
estopped from relitigating the issue of his mental capacity.9
In Sun v. State, 830 P.2d 772, 777 & n.9 (Alaska
1992), we held that AS 09.17.03010
A person who suffers personal injury or death may not
recover damages for the personal injury or death if the
injuries or death occurred while the person was engaged in
the commission of a felony, the person has been convicted of
a felony, including conviction based on a guilty plea or a
plea of nolo contendere, and the felony substantially
contributed to the injury or death. This section does not
affect a right of action under 42 U.S.C. 1983. collaterally
estops a civil plaintiff from denying a criminal act to
which he plead nolo contendere. Although our holding was
based on the express language of AS 09.17.030, we have noted
that AS 09.17.030 embodies the public policy principle
enunciated in Alaska case law. Lord, 813 P.2d at 663. We
now combine and clarify these rules. We hold, based on
public policy grounds, that a civil plaintiff is
collaterally estopped from relitigating any element of a
criminal charge to which he has plead nolo contendere.
Such a conclusion is supported by Alaska rules and
decisional law on the subject of nolo contendere pleas.
Pletnikoff v. Johnson, 765 P.2d 973, 979-82 (Alaska 1988)
(Matthews, C.J., dissenting).11 We note that had Burcina
wished to avoid these collateral consequences of his nolo
contendere plea, he could have asserted the defenses of
either insanity12 or mental disease or defect,13 or he could
have entered a plea of guilty but mentally ill.14
Based on the foregoing, we hold that Burcina's
plea of nolo contendere has collateral estoppel effect in
this subsequent civil litigation because his claim is
prohibited by public policy.
C. Burcina Waived Any Claims for Injuries Unrelated
to the Arson Conviction
Burcina argues that the superior court erred in
dismissing his entire suit because public policy does not
bar his claims for injuries unrelated to the arson
conviction. Burcina contends that his injuries include
mental anguish, loss of enjoyment of life and emotional
distress which he suffered before he set fire to the Drop-In
We conclude that Burcina has waived this argument
on appeal. As noted by Gateway and Dr. Huffman, Burcina
failed to assert such a claim in his complaint,15 he failed
to include it in his responses to interrogatories,16 he
failed to include it in his statement of points on appeal,
and he failed to oppose a motion for entry of final judgment
dismissing his suit. In fact, Burcina suggested that his
claims include injuries unrelated to the arson on only one
occasion before the superior court. This appears in his
memorandum in opposition to Dr. Huffman's motion for
judgment on the pleadings. Burcina stated in a footnote as
Additionally, plaintiff suffered mental anguish prior
to the February 5, 1988, arson, as he gradually became
delusional during the period following Huffman's December,
1987, instruction to discontinue his anti-psychotic
medication. As with the injury suffered by plaintiff after
the arson, this mental anguish did not occur while plaintiff
was engaged in the commission of a felony, and AS 09.17.030
cannot bar plaintiff's claim for these pre-arson damages.
In Jeffries v. Glacier State Telephone Co., 604
P.2d 4 (Alaska 1979), we held that an issue was not properly
before our court where the issue was not properly raised or
briefed at the superior court level and was not included in
the statement of points on appeal. Id. at 11. As in the
present case, the only reference to the issue appeared in a
memorandum in opposition to a motion for judgment on the
pleadings. Id. at 11 n.26. Thus, based on our holding in
Jeffries, we hold that any claims for injuries unrelated to
the arson conviction are not properly before this court.
See also In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986);
Wickwire v. McFadden, 633 P.2d 278, 281 n.6 (Alaska 1981).
For these reasons, we AFFIRM the superior court's
grants of summary judgment dismissing Burcina's claims
against Gateway and Dr. Huffman.
1Burcina injured several police officers during a psychotic
episode and was subsequently charged with six counts of
assault, convicted and incarcerated. Burcina was then
committed to the Alaska Psychiatric Institute where he was
diagnosed as having paranoid schizophrenia and mixed
substance abuse, "with primary drug abuse being LSD, but to
include cocaine and marijuana."
2During the period from 1986 through 1988, Dr. Huffman was
engaged in the private practice of psychiatry in Ketchikan.
In addition, he had a contract with the City for "referred
emergency mental health patients . . . needing urgent care."
3Under AS 11.46.400, "[a] person commits the crime of arson
in the first degree if the person intentionally damages any
property by starting a fire or causing an explosion and by
that act recklessly places another person in danger of
serious physical injury."
4A party is entitled to summary judgment if there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Shanks v. Upjohn
Co., 835 P.2d 1189, 1193 (Alaska 1992). In determining
whether a party is entitled to judgment as a matter of law,
all reasonable inferences of fact must be drawn against the
moving party and in favor of the non-moving party. Wright
v. State, 824 P.2d 718, 720 (Alaska 1992). And where, as
here, an appeal raises questions of law and public policy,
we apply our independent judgment and adopt "the rule of law
which is most persuasive in light of precedent, reason and
policy." Shanks, 835 P.2d at 1193.
5Beilgard v. State, 896 P.2d 230, 233-34 (Alaska 1995); Shaw
v. State, Dep't of Admin., 861 P.2d 566 (Alaska 1993) (Shaw
II); Lord v. Fogcutter Bar, 813 P.2d 660, 663-64 (Alaska
1991); Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240
6Lord, 813 P.2d at 663; Adkinson, 659 P.2d at 1240.
7Our holding that public policy bars Burcina's claims
against Gateway and Dr. Huffman makes it unnecessary for us
to consider whether Burcina's claims are also prohibited by
8See supra note 3 for the text of AS 11.46.400 defining the
crime of arson in the first degree.
9Because we conclude that Burcina is collaterally estopped
from relitigating the issue of his insanity, we need not
decide whether to adopt the exception annunciated in
10Former AS 09.17.030, subsequently renumbered as AS
11In Pletnikoff, this court expressly refrained from
considering whether a conviction based on a plea of nolo
contendere has collateral estoppel effect because the issue
was not adequately briefed by the parties. Id. at 976 n.2.
In a dissent, Chief Justice Matthews reasoned that
collateral estoppel should apply to the conviction at issue
even though the subject was not adequately briefed. Id. at
979. Chief Justice Matthews noted that under federal law
the rule of collateral estoppel does not apply to
convictions based on pleas of nolo contendere. Id. He then
discussed the differences between Alaska law and federal
law, and why these differences justify applying the rule of
collateral estoppel to convictions based on pleas of nolo
contendere in Alaska:
The Alaska Rules are significantly different from the
Federal Rules on the question of the effect of a plea of
nolo contendere. Rule 410 of the Federal Rules of Evidence
explicitly states that nolo contendere pleas are
inadmissible while Alaska Rule of Evidence 410 does not.
Further, Federal Criminal Rule 11(b) provides that a
defendant may plead nolo contendere only with the consent of
the court and only then after the court has given "due
consideration of the views of the parties and the interest
of the public in the effective administration of justice."
Alaska has no counterpart to this provision. Moreover,
Federal Criminal Rule 11(e)(6)(B) explicitly makes
inadmissible a plea of nolo contendere. Alaska Criminal
Rule 11(e)(6) contains no such provision. Finally, Federal
Evidence Rule 803(22) provides that "[e]vidence of a final
judgment, entered after a trial or upon a plea of guilty
(but not upon a plea of nolo contendere), adjudging a person
guilty of a crime punishable by death or imprisonment in
excess of one year" is not hearsay. This suggests by
implication that a conviction based upon a plea of nolo
contendere is hearsay. By contrast the Alaska
Evidence Rules contain no exception to the hearsay rule for
judgments of previous conviction. The commentary explains
that this omission was made advisedly, since the effect of a
judgment of conviction is properly a subject governed by the
rules of collateral estoppel, rather than the rules of
evidence. See Alaska Evidence Rule 803 and commentary at
As a matter of decisional law, Alaska law also differs
from federal law concerning nolo pleas. In the federal
system the trial judge has the discretion to reject a nolo
plea. In Alaska a defendant may plead nolo rather than
guilty as a matter of right. Miller v. State, 617 P.2d 516,
518 (Alaska 1980); Lowell v. State, 574 P.2d 1281, 1285
Pletnikoff, 765 P.2d at 979-80 (Matthews, C.J., dissenting).
12Alaska Statute 12.47.010(a) states as follows:
In a prosecution for a crime, it is an affirmative
defense that when the defendant engaged in the criminal
conduct, the defendant was unable, as a result of a mental
disease or defect, to appreciate the nature and quality of
13Alaska Statute 12.47.020(a) provides as follows:
Evidence that the defendant suffered from a mental
disease or defect is admissible whenever it is relevant to
prove that the defendant did or did not have a culpable
mental state which is an element of the crime.
14Alaska Statute 12.47.030(a) provides as follows:
A defendant is guilty but mentally ill if, when the
defendant engaged in the criminal conduct, the defendant
lacked, as a result of a mental disease or defect, the
substantial capacity either to appreciate the wrongfulness
of that conduct or to conform that conduct to the
requirements of the law. A defendant found guilty but
mentally ill is not relieved of criminal responsibility for
criminal conduct and is subject to the provisions of AS
15In Count I of his complaint, Burcina alleges in part as
As a result of Defendant Gateway's failure to provide
Plaintiff with medication, Plaintiff became psychotic.
While in a psychotic state, Plaintiff set fire to the Mental
Health Drop-in Center in Ketchikan, and as a consequence of
this, he has suffered and will continue to
suffer imprisonment, mental anguish, loss of income, loss of
enjoyment of life and emotional distress.
The allegations contained in Counts II, III and IV
are essentially the same as Count I. Count I clearly states
that Burcina's mental anguish, loss of enjoyment of life,
and emotional distress are a consequence of Burcina setting
fire to the Drop-In Center. Thus, Burcina's complaint does
not advance any claims for injuries unrelated to the arson.
16During discovery Gateway served interrogatories on Burcina.
Interrogatory No. 7 asked:
Please describe the loss of enjoyment of life that you
allege you have sustained in paragraphs 8 and 12 of your
Burcina responded as follows:
I became severely mentally impaired by psychosis and
delusions of paranoid schizophrenia. I was in fear of my
life and personal safety because of my paranoid delusions.
I almost committed suicide on several occasions because I
believed I was going to get a 22-year jail sentence. I was
severely depressed during my jail time. I am still
depressed because I lost my girlfriend because of the
complaint and I almost committed suicide over that. I have
bad memories of the delusional psychosis that makes me have
nightmares. I have nightmares about prison life. In
prison other prisoners taunted me because I was an arsonist
and called me crazy. In Ketchikan, I have a reputation as
the insane arsonist and am unable to get dates with women in
my age group.
Thus, Burcina's response does not include claims for
injuries unrelated to the arson conviction.