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Voight v. Snowden (9/13/96), 923 P 2d 778
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, telephone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
J. BURK VOIGT, )
) Supreme Court No. S-7369
) Superior Court No.
) 4FA-94-1308 Civil
) O P I N I O N
ARTHUR H. SNOWDEN, II, )
RICHARD D. SAVELL, KARROLD )
JACKSON, RONALD J. WOODS, )
STEPHANIE J. COLE, SHIRLEY )
NASH and STATE OF ALASKA, )
) [No. 4401 - September 13, 1996]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Michael I. Jeffery, Judge.
Appearances: J. Burk Voigt, pro se,
Fairbanks, and Robert John, Law Office of
Robert John, Fairbanks, for Appellant. Frank
S. Koziol, Law Office of Frank S. Koziol,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Matthews,
Eastaugh and Fabe, Justices. [Rabinowitz,
Justice, not participating.]
J. Burk Voigt claimed that he was wrongfully terminated
from his position with the Alaska Court System. While he initially
contested his termination and filed a formal grievance, Voigt
failed to exhaust his administrative remedies. The issue raised in
this appeal is whether this failure should be excused.
II. FACTS AND PROCEEDINGS
A. Voigt's Tenure as Clerk of Court and Eventual Termination
In June 1989 J. Burk Voigt applied for and was offered
the position of Fairbanks Clerk of Court and Assistant Area Court
Administrator for the Fourth Judicial District of the Alaska Court
System. Voigt accepted the job and moved from Colorado to
Voigt received his first performance evaluation in
September 1990. Charles Gibson, Area Court Administrator, gave
Voigt an overall evaluation of "above average." However, in the
category of "getting along with other workers,"Voigt received a
rating of "needs improvement." Gibson noted that he wanted Voigt
to consider the evaluation of his ability to relate to others "not
as a reprimand, but as a guide for the future; not to punish, but
In February 1991 Voigt received a second evaluation from
Gibson because of Gibson's imminent departure as Area Court
Administrator. On Voigt's evaluation form, Gibson created a box
between "above average"and "outstanding"to describe Voigt's
overall performance. He noted that Voigt had "applied himself with
enthusiasm and improved his performance considerably." The new
Presiding Judge for the Fourth Judicial District, Judge Richard
Savell, signed the evaluation but noted that he lacked "a basis for
comparison"and did not "endorse or disagree"with the evaluation.
After Gibson's departure, Voigt assumed the position of
Acting Area Court Administrator. He served in this capacity for
nine months before a permanent Area Court Administrator was
appointed. (EN1) During that time, he received a written reprimand
from Presiding Judge Savell for "unacceptable behavior in the
performance of [his] duties." Savell characterized Voigt's
behavior as "game-playing, passive-aggressive behavior, or behavior
befitting a spoiled, pouting child." The reprimand related several
examples of Voigt's conduct in this regard. The letter of
reprimand warned Voigt that "failure to correct these deficiencies
will lead to further disciplinary action up to and including your
dismissal, if warranted."
Five months after the reprimand, Presiding Judge Savell
gave Voigt his third performance evaluation. Savell rated Voigt as
overall "above average"and recommended him for a merit increase.
However, Judge Savell also noted that Voigt tended to circumvent
his superiors if he disagreed with them and that he was "openly
hostile and disrespectful in his dealings with representatives of
court administration." Savell expressed his concern that Voigt's
"great accomplishments in the Clerk's Office have come at the price
of dampened morale and fear on the part of subordinate employees."
In February 1992 Voigt filled a vacant Court Clerk I
position by offering it to a former superior court law clerk. At
the time that Voigt made the offer, this former clerk was working
as an attorney in Maine. R.D., an Alaska Native working for the
court system in Galena, filed a grievance alleging discrimination
when she was not hired for the position. R.D. had previously
applied for positions with the Fairbanks court on two occasions and
had not been hired for either of them. Woods reviewed the
grievance and upheld Voigt's hiring decision. However, shortly
thereafter, Presiding Judge Savell overturned Woods' decision in
R.D.'s case, finding that Voigt had ignored R.D.'s superior
qualifications and experience and had imposed a "subjective
personality requirement that [was] potentially discriminating in
Prior to the resolution of R.D.'s grievance, Arthur H.
Snowden, II, Administrative Director of the Alaska Court System,
requested Personnel Director Karrold Jackson to investigate the
integrity of the hiring procedures being used in Fairbanks.
Snowden instructed Jackson to wait for completion of any
outstanding grievances before proceeding with this task.
Jackson traveled to Fairbanks on March 3, 1992 in order
to conduct her investigation of Voigt's patterns of hiring.
According to Voigt, after meeting with him, Jackson met "mostly
with employees who had a complaint to register against Voigt and
were 'promised anonymity.'"
On March 24, 1992, Woods and Savell delivered a Notice of
Intent to Terminate to Voigt. The reasons given for dismissal
included "numerous . . . inappropriate statements and actions in
dealing with subordinate employees;"misuse of court resources "for
improper and harmful purposes;"insubordinate behavior in an
"attempt to undermine the presiding judge's action[s] in front of
subordinate employees;"and "poor personnel and supervisory
practices despite . . . previous warnings." Voigt claims that none
of the matters in this notice had ever been discussed with him
B. The Administrative Proceedings
Voigt challenged his termination by requesting a
pretermination hearing. Normally Judge Savell would have presided
over the pretermination hearing as the Area Court Administrator's
superior. However, because of his role in the investigation and
decision to terminate Voigt, he asked then Chief Justice Jay A.
Rabinowitz to designate another presiding judge for the purpose of
holding a pretermination hearing. Chief Justice Rabinowitz
appointed Judge Niesje J. Steinkruger as Acting Presiding Judge for
the purpose of holding the pretermination hearing.
On March 26, 1992, Judge Steinkruger held a
pretermination hearing. Voigt's counsel asked Judge Steinkruger to
recuse herself and attempted to exercise a peremptory
disqualification. Judge Steinkruger rejected both of these
The hearing, which was recorded and open to the public,
lasted over twelve hours. Voigt's counsel agreed that Voigt was
not entitled to a full-blown evidentiary hearing at the
pretermination stage and that the purpose of the hearing was to
determine whether there was reasonable cause to terminate Voigt.
Voigt's counsel examined Judge Savell and Ronald Woods extensively
regarding the basis for the allegations in the Notice of
Termination. Voigt also testified. Voigt's counsel made a closing
The following day, Judge Steinkruger upheld the decision
to terminate Voigt, finding reasonable grounds to believe that the
charges were true and that they supported the proposed action of
termination. That same day, Savell sent Voigt a Final Notice of
Dismissal. The notice informed Voigt that he had the right to file
a formal grievance as outlined in Alaska Court System Personnel
Rule (ACSPR) 9.05. A copy of the rule was attached.
Under ACSPR 9.05, Voigt had five working days within
which to file a formal written grievance with Personnel Director
Karrold Jackson. Voigt did so by a letter dated April 2, 1992.
Voigt continued to receive full pay and benefits. Stephanie Cole,
the Deputy Administrative Director, forwarded the grievance to
Administrative Director Snowden and requested the appointment of an
investigator. Snowden appointed Christine Johnson, Alaska Court
System Rules Attorney. Voigt did not object to this appointment.
(EN2) After interviewing numerous witnesses, Johnson filed a
report that supported the termination.
Voigt's next step in the administrative process was to
request a hearing under ACSPR 9.05.02. He did not. Instead,
Voigt's attorney wrote to Chief Justice Rabinowitz, indicating that
further administrative proceedings would be futile and that his
client would pursue his case in federal court.
Had Voigt requested a hearing, a hearing officer would
have been appointed by Administrative Director Snowden. Voigt
would have had the right to file an objection to the choice of
officer and to demonstrate bias on the part of the officer. Voigt
would have had the right to be represented by counsel, to call
witnesses, and to cross-examine witnesses against him. The hearing
would have been recorded, with all testimony given under oath. The
decision of the hearing officer would have been forwarded to
Snowden for review. If Snowden upheld an adverse decision, Voigt
would have had the right to file an administrative appeal to the
superior court under Appellate Rule 602(a)(2).
C. The Judicial Proceedings
Voigt filed a complaint in federal district court on
April 16, 1992. Voigt's federal law claims were dismissed with
prejudice on June 20, 1994, and his state law claims were dismissed
without prejudice. This decision was affirmed by the Ninth
Circuit. Voigt v. Savell, 70 F.3d 1552, 1566 (9th Cir. 1995),
cert. denied, 116 S. Ct. 1826 (1996). On May 17, 1994, Voigt filed
a complaint in superior court in which he made contract, tort, and
constitutional claims. Judge Michael I. Jeffery granted the
defendants' motion for summary judgment, based on Voigt's failure
to exhaust his administrative remedies. Alternatively, Judge
Jeffery found that Voigt's lawsuit was an untimely administrative
appeal. Voigt appeals.
A. Standard of Review
This court reviews the superior court's grant of summary
judgment de novo. Neilson v. Benton, 903 P.2d 1049, 1052 (Alaska
1995). The judgment will be affirmed only if no genuine issues of
material fact exist and the moving party is entitled to judgment as
a matter of law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
B. Voigt's Failure to Exhaust His Administrative Remedies
As we observed in Van Hyning v. University of Alaska, the
exhaustion of administrative remedies doctrine "allow[s] an
administrative agency to perform functions within its special
competence -- to make a factual record, to apply its expertise, and
to correct its own errors so as to moot judicial controversies."
621 P.2d 1354, 1355-56 (Alaska 1982) (quoting Parisi v. Davidson,
405 U.S. 34, 37 (1972)). Here, Voigt concedes that he failed to
exhaust his administrative remedy by declining to proceed to a
grievance hearing before a hearing officer. Furthermore, he
acknowledges that the Alaska Court System's grievance procedures
are adequate as written and that they comply with due process.
Voigt argues that he should be excused from the
exhaustion requirement since it would have been futile for him to
proceed to the hearing stage, given the involvement of Snowden,
Jackson, Savell, and Woods in his investigation and termination.
In a related argument, he contends that the grievance procedures
were not being applied in a fair manner, due to the appointment of
Judge Steinkruger to conduct the pretermination hearing and the
selection of a member of Snowden's staff to conduct an "in-house"
The availability of an impartial tribunal is "a basic
ingredient of a fair and adequate hearing in accordance with due
process." Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982)
(citations omitted). We have stated that when one person performs
the functions of investigating, prosecuting and judging a case,
this requirement of an impartial tribunal may not be satisfied.
Id. at 182; Storrs v. Lutheran Hosp. & Homes Soc'y of Am., Inc.,
609 P.2d 24, 28 n.12 (Alaska 1980). While Voigt claims that an
adverse decision from Snowden was a certainty, Snowden's
involvement in Voigt's case was minimal. (EN4) In its decision on
summary judgment, the superior court recognized and relied on the
fact that "Snowden had never actually been called upon to make a
decision about the propriety of Voigt's termination."
In Eidelson, we rejected a suspended doctor's futility
argument which was similar to that of Voigt, despite the fact that
Dr. Ivy, the hospital official who initiated the suspension of the
doctor's privileges, was also a member of the executive committee
which was to review the suspension decision. We found that under
the hospital bylaws, Dr. Archer was permitted to object to Dr.
Ivy's participation in the executive committee's review of the
hearing committee's recommendation. Eidelson, 645 P.2d at 182. We
also rejected Dr. Archer's argument that the executive committee
could not review the suspension fairly because of its previous
involvement in the case. Id. at 183. This was in part due to the
fact that Dr. Archer had a further right to appeal to the governing
board, which had not played any role in the investigation or
decision to terminate. Id.
Dr. Archer contended, as Voigt does in this case, that
the disciplinary proceedings were being deliberately used against
him, and that this excused his failure to exhaust his
administrative remedies. We held that Dr. Archer should have
raised this complaint through the administrative appeals process.
Id. at 179-80.
In this case, Voigt's fears of a biased hearing could
certainly have been allayed had he continued with the
administrative process. The ultimate decision in Voigt's case was
to be made by Snowden, whose role was not that of prosecutor or
investigator. Snowden might well have appointed a hearing officer
whom Voigt believed would be fair and who could have developed an
accurate factual record. Had Voigt continued to harbor concerns
that the selected hearing officer would not be fair and impartial,
he would have had the right to object to the choice of hearing
officer. And Voigt could have continued to raise those objections
in an administrative appeal to the superior court. (EN5)
Like the doctor in Eidelson, Voigt should have pursued
his complaints through the grievance and administrative appeal
process before turning to the courts for help. To hold otherwise
would be to obviate the requirement that an adverse decision be a
"certainty." Voigt's failure to exhaust his administrative
remedies cannot be excused on the grounds of futility or that his
remedy was inadequate.
Voigt also claims that because he contested the form of
the administrative procedure, he was not required to exhaust his
administrative remedies. See Kleven v. Yukon-Koyukuk Sch. Dist.,
853 P.2d 518, 525 (Alaska 1992). Our decision in Kleven does not
help Voigt. In Kleven, the terminated administrator wanted to
pursue his grievance through binding arbitration, as provided under
the school district labor contract. The school district wanted him
to pursue his grievance before the school board. We noted that in
most cases, "administrative procedures are clear, and a claimant
has only to follow them in order to seek relief from an
administrative body." Id. But in a case where the procedure that
will be followed is unclear, the claimant may go to court to get
the dispute resolved, with a remand to the appropriate
administrative agency to follow the correct procedure. Id.
In this case, the procedure to be followed was clear, and
there is every indication that Voigt understood it. Indeed, Voigt
never alleges that he misunderstood the formal grievance procedure
required by the Personnel Rules. Since the grievance procedure to
be used was clear, Voigt was required to make a "'good faith
effort' to pursue the grievances internally." Id. at 524 (quoting
Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 100 (Alaska 1992)).
This he failed to do. (EN6)
Voigt's failure to exhaust his administrative remedies
cannot be excused as a matter of law. The judgment of the superior
court is AFFIRMED.
1. In November 1991 Ronald Woods became the Area Court
2. Ms. Cole offered Thomas Wickwire, counsel for Voigt, the
option of "skipping this stage"and proceeding directly to a
hearing before an impartial hearing officer, since the
pretermination hearing had covered many of the same areas as would
an investigation. Voigt's counsel asked Cole who would be
conducting the investigation. Upon learning that it would be
Johnson and discussing it with his client, Wickwire stated that
Voigt did not wish to waive the investigation.
3. Indeed, Voigt's expert, John N. Taylor, Ph.D., Associate
Professor of Management at the University of Alaska Fairbanks,
states that the Alaska Court System's grievance procedures are
"comprehensive"and "typical of those found in any large private
or government employer organizations."
4. While Snowden initiated an investigation of Voigt's hiring
practices, he specifically instructed Karrold Jackson to refrain
from starting her investigation of Fairbanks hiring practices until
after all grievances were over. After Voigt's termination, Snowden
appointed an investigator, Christine Johnson, to prepare a report
on the termination. Voigt had no objection to the selection of
Johnson as investigator.
5. Voigt argues the related point that once he discovered that
"his fate had already been sealed,"he worried that he would be
collaterally estopped from relitigating the facts of his dispute.
He argues that this was a major reason for his abandonment of the
administrative appeals process. However, as Diedrich v. City of
Ketchikan makes clear, issue preclusion as a result of
administrative proceedings hinges on the fact that the
administrative hearing was fair and presented the plaintiff with a
full opportunity to present his case. See Diedrich v. City of
Ketchikan, 805 P.2d 362, 366-67, 369-70 (Alaska 1991). If the
process had been unfair, Voigt would not have been estopped. If it
was fair, he would have had no reason to complain.
6. Voigt also briefly takes issue with the appointment of Judge
Steinkruger as Acting Presiding Judge for the purpose of conducting
his pretermination hearing. However, as the trial court noted in
its decision on summary judgment, "since [Voigt would] continu[e]
to receive pay and benefits until the conclusion of [the grievance]
process, the post-termination hearing would cure any deficiencies
in the pretermination hearing." Voigt would also have had the
opportunity to raise arguments about the propriety of his
suspension during the formal grievance and administrative appeal