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Renwick v. Alaska Board of Marine Pilots (1/15/99), 971 P 2d 631


     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

DAVID RENWICK,                )
                              )    Supreme Court No. S-8175
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-95-2012 CI
                              )
STATE OF ALASKA, BOARD OF     )    O P I N I O N
MARINE PILOTS,                )
                              )
               Appellee.      )    [No. 5063 - January 15, 1999]
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances: Richard D. Kibby, Anchorage, for
Appellant.  Gayle A. Horetski, Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.


          COMPTON, Justice.
          BRYNER, Justice, concurring.


I.   INTRODUCTION
          Captain David Renwick appeals the superior court's
dismissal of his declaratory judgment action on the grounds of res
judicata and/or collateral estoppel.  We affirm on alternate
grounds, but modify the judgment.
II.  FACTS AND PROCEEDINGS
     A.   Background [Fn. 1]
          One stormy evening in 1994 Captain David Renwick was the
state marine pilot assigned to the M/V REEFER BADGER.  As the
REEFER BADGER was about to run aground, Renwick gave the command
"full astern."  Because another vessel was anchored directly behind
the REEFER BADGER, Captain Yamaguchi, master of the REEFER BADGER,
perceived imminent danger of a collision.  Yamaguchi countermanded
Renwick's order, changing it to "half-ahead, starboard rudder."  At
this point, Renwick left the deck of the REEFER BADGER, called to
the nearby pilot boat to come pick him up, and leapt onto the pilot
boat.  The REEFER BADGER did not run aground and Renwick returned
to the REEFER BADGER.
     B.   Proceedings
          In May 1994, based on the incident described above, the
director of the Division of Occupational Licensing, Alaska
Department of Commerce and Economic Development (Division)
petitioned the Alaska Board of Marine Pilots (Board) to summarily
suspend Renwick's marine pilot's license.  The Board found that
Renwick's continued licensure posed "a clear and immediate danger
to public health and safety."  The Board summarily suspended
Renwick's marine pilot license.  Renwick challenged this suspension
and requested an administrative hearing.  The Division held a
hearing and an administrative officer proposed a decision, which
the Board rejected.  The Board decided to hear the matter itself. 
          On October 19, 1994, the Division filed an Accusation
against Renwick, based on the same incident set forth above,
seeking the revocation of Renwick's license.  The Board ordered
that the hearing on this Accusation be separate from the hearing on
the summary suspension.
          On October 27, 1994, Renwick filed a complaint in
superior court for declaratory judgment, which he later amended. 
He sought determinations of: (1) whether the second clause of
12 Alaska Administrative Code (AAC) 56.990(14), as interpreted and
applied, is "ultra vires"; (2) whether the second clause of 12 AAC
56.990(14), as interpreted and applied, is preempted by 46 U.S.C.
sec.sec. 8501-02; (3) whether the second clause of 12 AAC
56.990(14), as
interpreted and applied, is "void for vagueness and lack of
notice"; and (4) whether the second clause of 12 AAC 56.990(14), as
interpreted and applied, violates Renwick's state and federal
rights to due process and equal protection. 
          On December 1, following a hearing, the Board issued a
written decision based upon a unanimous vote upholding the summary
suspension of Renwick's license.  Renwick appealed this summary
suspension to the superior court.  Renwick then moved to
consolidate that appeal with his pending declaratory judgment
action.  This motion was denied; the superior court found that the
appeal and the declaratory judgment action "do not involve
sufficient common questions of law to warrant consolidation."
          The declaratory judgment action was dismissed, without
prejudice, on February 6, 1995, due to Renwick's failure to
properly serve the complaint, or failure to exhaust his
administrative remedies, or both; the superior court's rationale is
not stated explicitly.  The action was re-filed, seeking the same
relief, on March 10.  The State, in its answer, made the court
aware of the pending, parallel administrative appeal.
          In September the superior court issued its decision in
the administrative appeal.  It held that a pilot has no duty to
remain on board a vessel after the vessel's master has reasserted
command; the definition of "on duty"in 12 AAC 56.990(14) could not
be interpreted to include a duty to remain on board and to advise
the master on navigation and local conditions.  It reversed the
order of summary suspension and remanded to the Board to vacate its
findings.  The State appealed that decision to this court.  In
State, Board of Marine Pilots v. Renwick, 936 P.2d 526 (Alaska
1997) (Renwick I), we reversed the decision of the superior court
and remanded the case with directions to remand to the Board for
such further proceedings as may be appropriate. [Fn. 2] 
          The State then moved the superior court to dismiss
Renwick's still pending declaratory judgment action on the ground
of res judicata.  Renwick opposed, arguing that he was seeking
reconsideration of Renwick I and that Renwick I failed to address
paragraphs 9-12 of his complaint.  The superior court granted the
State's motion to dismiss Renwick's declaratory judgment action,
with prejudice, as "barred by the decision in State, Board of
Marine Pilots, et al. v. David Renwick, Op. No. 4782 (February 21,
1997)."  Renwick appeals.
III. STANDARD OF REVIEW
          The question whether res judicata or collateral estoppel
applies is a question of law, which we review de novo. [Fn. 3]
IV.  DISCUSSION

          Renwick seeks a declaratory judgment on the following
issues:
          (1) whether the second clause of 12 AAC
56.990(14), as interpreted and applied, is "ultra vires";
          
          (2) whether the second clause of 12 AAC
56.990(14), as interpreted and applied, is preempted by 46 U.S.C.
sec. 8501-02;

          (3) whether the second clause of 12 AAC
56.990(14), as interpreted and applied, is "void for vagueness and
lack of notice"; and

          (4) whether the second clause of 12 AAC
56.990(14), as interpreted and applied, violates Renwick's state
and federal rights to due process and equal protection.

          Issues (1), (2), and (4) were argued before the superior
court whose decision was appealed in Renwick I.  But the superior
court's decision turned on an issue not also presented in Renwick's
declaratory judgment action: the appropriate definition of "on
duty,"as used in 12 AAC 56.990(14).  The superior court did not
address any of the issues presented in Renwick's declaratory
judgment action, because it decided to reverse the Board's decision
based on its conclusion regarding the appropriate definition of "on
duty."  On appeal to this court, Renwick did not present these
issues as alternate grounds to affirm.  We therefore did not
address these issues.  See Renwick I, 936 P.2d at 531-32.
     A.   Renwick's Declaratory Judgment Action Is Not Barred by
          Res Judicata.
          Once a judgment on the merits of a controversy has been
entered, res judicata bars subsequent actions between the same
parties on the same claim or on claims that were required to be
brought in the original proceeding. [Fn. 4]  "The doctrine
implements 'the generally recognized public policy that there must
be some end to litigation and that when one appears in court to
present his case, is fully heard, and the contested issue is
decided against him, he may not later renew the litigation in
another court.'"[Fn. 5]
          The doctrine of res judicata is not applicable to
Renwick's declaratory judgment action.  The "claim"decided in
Renwick I was that of the Board to summarily suspend Renwick's
license.  Although the issues raised in Renwick's declaratory
judgment action are virtually identical to issues raised before,
but not decided by, the superior court in Renwick I, Renwick's
claim for declaratory relief is not the same as the State's claim
that Renwick's license should be summarily suspended.  Renwick's
declaratory judgment claims may also have implications in the
proceeding to permanently revoke Renwick's license. [Fn. 6] 
Furthermore, the State contends that Renwick's previous failure to
present to this court his declaratory judgment arguments as
alternate grounds to affirm in Renwick I should bar him from
asserting those arguments in a later, distinct proceeding.  But the
State has presented neither authority nor convincing argument
supporting this proposition.  Res judicata will not operate to bar
the declaratory judgment action. [Fn. 7]
     B.   Renwick's Declaratory Judgment Action Is Not Barred by
Collateral Estoppel.

          The requirements for collateral estoppel, also termed
"issue preclusion,"are set forth in Jackinsky v. Jackinsky, 894
P.2d 650, 654 (Alaska 1995):
          Collateral estoppel or issue preclusion bars
the relitigation of an issue where:

               (1) the party against whom the preclusion
is employed was a party to or in privity with a party to the first
action;

               (2) the issue precluded from relitigation
is identical to the issue decided in the first action;

               (3) the issue was resolved in the first
action by a final judgment on the merits; and

               (4) the determination of the issue was
essential to the final judgment.

          Parts (2), (3), and (4) of the above test are not
satisfied.  None of the issues raised in Renwick's declaratory
judgment action was decided in Renwick I.  They were not addressed
by the superior court and they were not presented to this court. 
Collateral estoppel cannot operate to bar Renwick's declaratory
judgment action. [Fn. 8]
     C.   Renwick Failed to Exhaust His Administrative Remedies.
          The State argues that "had the superior court not
dismissed on res judicata grounds, Renwick's declaratory judgment
action would have been barred by the doctrine of exhaustion of
administrative remedies."  The State points out that, based on that
doctrine, we may uphold the dismissal of Renwick's declaratory
judgment action.  The State cites to Sea Lion Corp. v. Air
Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990), which
held that "[a]n appellee may defend a judgment on any basis
established by the record, whether or not it was relied on by the
trial court or even raised before the trial court so long as no new
factual determinations are required." 
          Standard Alaska Production Co. v. State, Department of
Revenue, 773 P.2d 201 (Alaska 1989) supports the proposition that
Renwick's declaratory judgment action should be barred by the
doctrine of administrative exhaustion.  In Standard, we explained
that a superior court should not entertain "legal"or
"constitutional"claims which have been severed from the remainder
of a controversy otherwise subject to the doctrine of
administrative exhaustion, for to do so would allow a party to
emasculate the purpose of the doctrine. [Fn. 9]  One of its
purposes is to create "a factual context within which to review a
case,"which is "axiomatic to our system of justice."[Fn. 10] 
Furthermore, it permits the administrative process to proceed
uninterrupted, subject to judicial review only at the conclusion of
the process rather than at each phase.  It also prevents the
reduction in an agency's effectiveness that results when others are
encouraged to circumvent agency procedures by obtaining court
review before exhausting the administrative process, causing
weakened and more expensive enforcement efforts. [Fn. 11]  "[C]ases
of mixed questions of law and fact are 'particularly' appropriate
for administrative resolution prior to judicial review since . . .
an administrative ruling on the factual issues may moot the legal
issues."[Fn. 12]  In the instant case, Renwick's declaratory
judgment action attempts to sever constitutional issues from his
pending revocation proceeding (separate from the now-concluded
summary suspension proceeding).  Because an administrative ruling
on the facts in Renwick's favor would moot the claims raised in
Renwick's declaratory judgment action, it is in the interests of
judicial economy to require Renwick to proceed first before the
Board.  We therefore conclude that Renwick's declaratory judgment
action is barred by the doctrine of administrative exhaustion. [Fn.
13]
V.   CONCLUSION
          We AFFIRM the judgment of the superior court on the
ground that Renwick failed to exhaust his administrative remedies. 
We MODIFY the judgment, directing that it be entered without
prejudice.  This will permit Renwick to argue before the Board the
claims raised in his declaratory judgment action.

BRYNER, Justice, concurring.
          I am not convinced that the res judicata analysis in
Part IV.A. of the court's opinion is sound.  But I am persuaded
that given the procedural confusion stemming from the superior
court's refusal to consolidate Renwick's declaratory judgment
action with his administrative appeal, it would be fundamentally
unfair to invoke res judicata as a bar to his declaratory judgment
action, even if the doctrine might otherwise apply.  Accordingly,
I concur in the result reached in Part IV.A., and I join in the
balance of the opinion.


                            FOOTNOTES


Footnote 1:

     This is a brief summary of the Board's findings of fact,
adopted by this court in State, Board of Marine Pilots v. Renwick,
936 P.2d 526, 527-530 (Alaska 1997)(Renwick I).


Footnote 2:

     See Renwick I, 936 P.2d at 532.


Footnote 3:

     See Rapport v. Tesoro Petroleum Co., 794 P.2d 949, 951 (Alaska
1990); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 4:

     See DeNardo v. State, 740 P.2d 453 (Alaska 1987).


Footnote 5:

     Id. at 455 (quoting Drickersen v. Drickersen, 546 P.2d 162,
169 (Alaska 1976)).


Footnote 6:

     See Owsichek v. State, Guide Licensing & Control Bd., 627 P.2d
616, 619 (Alaska 1981) (recognizing functional difference between
action for declaratory judgment that agency lacked certain
authority and prior administrative action before that agency).  See
also Restatement (Second) of Judgments, sec. 33 cmt. c (1982)
(suggesting that declaratory judgment actions are not treated as
"claims"for res judicata purposes).  


Footnote 7:

     Renwick makes the additional argument that it is unfair to
subject his declaratory judgment action to res judicata when the
superior court refused to consolidate it with his administrative
appeal.  It does not appear to be necessary to address this issue
to resolve this question.  We note, however, that all of the issues
presented in the declaratory judgment action were already before
the superior court as part of the administrative appeal. 


Footnote 8:

     Renwick also argues that the dismissal of his declaratory
judgment action is a due process violation -- he is denied the
opportunity to be heard in a meaningful time and manner.  As it is
clear that neither res judicata nor collateral estoppel can operate
to bar Renwick's declaratory judgment action, it is unnecessary to
address this constitutional issue.


Footnote 9:

     See Standard Alaska Prod. Co. v. State, Dep't of Revenue, 773
P.2d 201, 207 (Alaska 1989).


Footnote 10:

     See id.


Footnote 11:

     See 2 Kenneth Davis, Administrative Law Treatise sec. 15.2 (3d
ed. 1994).


Footnote 12:

     Standard, 773 P.2d at 207-08.  


Footnote 13:

     Standard also explains that "futility"and the potential for
"irreparable harm"allow exceptions to the doctrine of
administrative exhaustion.  See id. at 208-09.  Renwick has
presented neither argument to this court.

          Renwick attempts to characterize his claims as
challenging agency jurisdiction, and thus arguably not subject to
the doctrine of administrative exhaustion, citing State, Department
of Labor v. University of Alaska, 664 P.2d 575, 581 (Alaska 1983). 
The challenge of subject matter jurisdiction in the cited case is
not analogous to the constitutional challenges presented in
Renwick's declaratory judgment action, which deals with the
permissible interpretation and application of an AAC provision. 
Renwick's argument is not persuasive.