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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Corrections v. Heisey (3/2/2012) sp-6655

State, Dept. of Corrections v. Heisey (3/2/2012) sp-6655

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



STATE OF ALASKA,                                  ) 

DEPARTMENT OF CORRECTIONS, )                              Supreme Court No. S-13656 

                                                  ) 

                         Petitioner,              )       Superior Court No. 3AN-08-11176 CI 

                                                  ) 

        v.	                                       )       O P I N I O N 

                                                  ) 

PAUL HEISEY,                                      )       No. 6655 - March 2, 2012 

                                                  ) 

                         Respondent.	             )
 

                                                  )
 



                 Petition for Review from the Superior Court of the State of 

                 Alaska,     Third   Judicial   District,   Anchorage,      Sen   K.   Tan, 

                 Judge. 



                 Appearances:       Jonathan   A.   Woodman,   Assistant   Attorney 

                 General, Anchorage,         Janell M. Hafner, Assistant Attorney 

                 General, and Daniel S. Sullivan, Attorney General, Juneau, 

                 for Petitioner.    Ted Stepovich, Anchorage, for Respondent. 



                 Before:      Carpeneti,      Chief    Justice,   Fabe,    Winfree,     and 

                 Stowers, Justices.     [Christen, Justice not participating.] 



                 CARPENETI, Chief Justice. 



I.       INTRODUCTION 



                 Two correctional officers allegedly injured an inmate within a jail.  The 



inmate   filed   a   complaint   asserting   several   tort   claims   against   the   State   and   the   two 



officers.  Pursuant to a statute allowing the State to substitute as defendant for any State 



employee   that   is   certified   as   acting   within   the   scope   of   employment,   the   Attorney 


----------------------- Page 2-----------------------

General   certified   the   officers   as   acting   within   the   scope   of   their   employment   and 



substituted the State as the defendant.             The State then filed a motion to dismiss   on 



sovereign immunity grounds.             While the motion was pending, the inmate moved to 



amend his complaint to substitute state constitutional claims for the tort claims.  The 



superior court granted the motion to amend, ruling that the inmate may have a damages 



claim for violation of his state constitutional rights under the circumstances of the case. 



In the same order, the superior court partially granted and partially denied the motion to 



dismiss.     The State petitioned for review of the superior court's legal conclusions.  We 



accepted the petition and requested briefing on three issues:               (1) whether the Attorney 



General's certification is subject to judicial review; (2) whether the inmate's claims arise 



out   of   an   assault   or   battery   for   which   the   State   is   immune;   and   (3)   whether   a   state 



constitutional claim for damages exists under the circumstances of this case. 



                 We conclude that the Attorney General's certification is subject to judicial 



review, that some of the inmate's claims arise out of an assault or battery for which the 



State is immune, and that a damages claim under the state constitution does not exist 



under   the   circumstances   of   this   case.   In   light   of   these   conclusions,   we   vacate   the 



superior court's order on the motion to amend and motion to dismiss, and remand for 



further proceedings. 



II.     FACTS AND PROCEEDINGS 



                 In October 2006, an incident occurred between inmate Paul Heisey and two 



correctional officers at the Anchorage Correctional Complex.                   In a complaint filed in 



October 2008, Heisey claimed that while he was in restraints and being escorted by the 



officers along a corridor, the officers either performed a "take down" and "slammed 



[him]   to   the   floor   face   first"   or   negligently   caused   him   to   fall,   resulting   in   serious 



physical injury and disfigurement. The complaint stated several alternate theories of tort 



liability against both the correctional officers and the State of Alaska.               These included 



                                                    -2-                                              6655
 


----------------------- Page 3-----------------------

that (1) the State owed a duty to Heisey to ensure that its correctional officers were 



properly trained in the use of force, and breached that duty by negligently training and 



supervising   the   officers;   (2)   the   State,   by   and   through   its   officers,   negligently   used 



excessive      force,   thereby    causing     injury   to  Heisey;     (3)  the   correctional     officers 



"negligently handled Heisey when they allowed him to fall on his face"; and (4) the 



actions of the officers "constituted an intentional assault." 



                 In December 2008, the State submitted to the superior court the Attorney 

General's certification pursuant to AS 09.50.253(c).1             The Attorney General determined 



that the correctional officers had been acting within the scope of their employment, and 



the State substituted itself as the party defendant for the officers.             The State also filed a 



motion to dismiss on the grounds that Heisey's claims arose out of the officers' alleged 

assault and battery and the State was immune under AS 09.50.250(3).2 



        1        AS 09.50.253(c) provides: 



                 Upon     certification    by  the   attorney    general   that  the   state 

                 employee   was   acting   within   the   scope   of   the   employee's 

                 office or employment at the time of the incident out of which 

                 the claim arose, any civil action or proceeding commenced 

                 upon   the   claim   in   a   state   court   is   considered   an   action   or 

                 proceeding against the state under the provisions of this title, 

                 and the state is substituted as the party defendant.           The civil 

                 action or proceeding certified under this subsection is subject 

                 to the same limitations and defenses applicable to an action 

                 or proceeding against the state.         The attorney general or the 

                 attorney general's designee shall defend the civil action or 

                 proceeding on behalf of the state. 



        2        AS 09.50.250(3) provides that an action may not be brought against the 



State   if   it   "arises   out   of   assault,   battery,   false   imprisonment,   false   arrest,   malicious 

prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference 

with contract rights." 



                                                    -3-                                               6655
 


----------------------- Page 4-----------------------

                In   opposing   the   motion   to   dismiss,   Heisey   argued   that   the   State   had 



mischaracterized the complaint as alleging assault and battery alone.                 He noted that he 



had also alleged the use of excessive force, and argued that the State was not immune 



from claims arising out of the use of excessive force.  The State replied that all claims in 



the complaint did arise out of an alleged assault or battery, the excessive force claims 



included, and therefore the State was immune to all claims in the complaint.                    Neither 



party mentioned Heisey's claim that the individual defendants negligently handled him 



and caused his injuries through their negligence. 



                While a decision was pending on the motion to dismiss, Heisey moved to 



amend his complaint.        The new complaint would have substituted alleged violations of 



the Alaska Constitution for his tort claims.   The State opposed Heisey's motion, arguing 



that the State was immune from all the claims in the amended complaint.  The State also 



argued that Alaska has never recognized a Bivens-type claim for alleged violations of the 



Alaska Constitution. Heisey responded that AS 09.50.250 grants no immunity for alleged 



violations of the Alaska Constitution.           He also asserted that, while Alaska has never 



recognized a private right of action for state constitutional torts, neither has it rejected 



such a cause of action. 



                 Superior   Court   Judge   Sen   K.   Tan   held   oral   argument   on   the   motion   to 



dismiss and the motion to amend.  At that time the court sua sponte inquired whether the 



Attorney General's certification was subject to judicial review.                As neither party had 



briefed this issue, the superior court ordered supplemental briefing on the availability of 



judicial review under AS 09.50.253(c). 



                In September 2009, the superior court issued an order concluding (1) that 



the    State   was   "clearly   immune      from    suit  on   the   intentional   tort"   claim   under 



AS 09.50.250(3); (2) that the State was immune from Heisey's negligent training and 



supervision      claim    under   Alaska     case   law;  and    (3)  that  the   Attorney    General's 



                                                   -4-                                             6655
 


----------------------- Page 5-----------------------

AS   09.50.253(c)   certification   that   a   state   employee   was   acting   within   the   scope   of 



employment was not subject to judicial review.  The superior court dismissed Heisey's 



non-constitutional       claims   but  nevertheless     permitted    Heisey's    motion    to  amend, 



concluding that this may be an instance where a Bivens-type claim exists.                 In the same 



order, the court partially denied and partially granted the State's motion to dismiss. 



                The State moved for reconsideration, claiming that the superior court had 



unlawfully permitted Heisey to amend his complaint to add state Bivens-type claims. 



Heisey responded that state constitutional tort claims are not barred by AS 09.50.250, 



and that he had met the requirements for a Bivens action.              The court denied the State's 



motion. 



                The State petitioned this court for review of the superior court's order on 



the motion to dismiss and the motion to amend.             Heisey's response asked us to accept 



review and to consider additional issues not raised in the State's petition.             We granted 



the petition and ordered briefing of three issues: (1) whether the Attorney General's 



certification under AS 09.50.253 is subject to judicial review; (2) whether Heisey's 



claims   arise   out   of   an   alleged   assault   and   battery   for   which   the   State   is   otherwise 



immune; and (3) whether Heisey is entitled to bring a damages claim for violation of his 



state constitutional rights under the circumstances of this case. 



III.    STANDARD OF REVIEW 



                Matters of constitutional or statutory interpretation are questions of law, 

which we review de novo.3         When reviewing a question of law, it is our "duty to adopt 



        3       Bradshaw v. State, Dep't of Admin., Div. of Motor Vehicles , 224 P.3d 118, 



122 (Alaska 2010) (quoting State v. Jeffery, 170 P.3d 226, 229 (Alaska 2007)); State 

Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 858 (Alaska 2003) (citing 

Tesoro Petroleum Corp. v. State, 42 P.3d 531, 535 (Alaska 2002));  Sampson v. State, 

31 P.3d 88, 91 (Alaska 2001). 



                                                  -5-                                            6655
 


----------------------- Page 6-----------------------

the rule of law that is most persuasive in light of precedent, reason and policy."4 



IV.	    DISCUSSION 



        A.	     The State's Scope-Of-Employment Certification Is Subject To Judicial 

                Review. 



                When a lawsuit is filed against state employees, AS 09.50.253(c) allows the 



Attorney General to determine whether the individually named defendants were acting 



within the scope of their employment during the conduct giving rise to the lawsuit.  If 



they were, the Attorney General certifies to the superior court that the defendants were 



acting within the scope of their employment, and substitutes the State for the individually 



named defendants.       The lawsuit proceeds against the State as the remaining defendant. 

                Alaska   Statute   09.50.253   is   derived     from   the   Westfall   Act,5  a   nearly 



identical federal statute that grants immunity to federal employees from tort lawsuits.6 



While     the  United    States  Supreme      Court   has   held  that  the  federal   certification   is 



              7 

reviewable,  Alaska has never addressed whether state certification is subject to judicial 



review.  The State argues that the certification is not reviewable.  Heisey maintains that 



it is, relying largely on United States Supreme Court case law and policy grounds. 



                After reviewing the statute's plain language, its legislative history, and 



        4       Ruckle v. Anchorage Sch. Dist ., 85 P.3d 1030, 1034 (Alaska 2004) (quoting 



Jackson v. Power , 743 P.2d 1376, 1379 n.5 (Alaska 1987)). 



        5       28 U.S.C.  2679(d)(1). 



        6       See Minutes, House Labor & Commerce Comm. Hearing on H.B. 488, 23rd 



Leg., 1st Sess. (Mar. 1, 2004) (Testimony of Gail Voigtlander, Assistant Attorney Gen.). 



        7       See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). 



                                                   -6-	                                           6655
 


----------------------- Page 7-----------------------

Supreme Court case law, we conclude that certification is reviewable.                       Our analysis 



proceeds from a presumption of judicial review in the absence of clear legislative intent 

to the contrary.8 



                 1.	     The plain language, legislative history, and legislative intent of 

                         AS 09.50.253(c) are silent on the subject of judicial review. 



                 When      interpreting    a  statute,  we    look   first  at  the  statute's   language, 

legislative history, and legislative purpose.9          Here, we conclude that all three are silent 



on the judicial review of affirmative certifications. 



                 Alaska Statute 09.50.253(c) provides, in relevant part: 



                 Upon     certification    by  the   attorney   general    that  the   state 

                 employee   was   acting   within   the   scope   of   the   employee's 

                 office or employment at the time of the incident out of which 

                 the claim arose, any civil action or proceeding commenced 

                 upon   the   claim   in   a   state   court   is   considered   an   action   or 

                 proceeding against the state under the provisions of this title, 

                 and the state is substituted as the party defendant. 



The State, arguing against review, claims that the plain meaning of the word "is," in the 



verbs "is considered" and "is substituted," indicates that the substitution is automatic and 



unreviewable.       We disagree.      The plain language does establish that the substitution 



occurs immediately once a defendant has been certified.                 However, the language says 



nothing about the reviewability of the certification. 



                 The legislative history   of AS   09.50.253   is similarly   silent.          The statute 



originated in the Alaska Senate as S.B. 338 during Alaska's 23rd legislature. At a Senate 



Committee meeting conducted in 2004, Assistant Attorney General Gail Voigtlander 



testified   that   the   bill   would   benefit   both   employees   and   the   public.   By   removing 



        8        See infra notes 32-35 and accompanying text. 



        9        Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010). 



                                                    -7-                                                 6655 


----------------------- Page 8-----------------------

employees   from   the   lawsuit   as   quickly   as   possible,   S.B.   338    would   minimize   the 



disruption to their lives that would result from being part of protracted litigation, and 



protect   their   reputations   by   precluding   the   need   to   disclose   their   involvement   in   a 



lawsuit.  In addition, because employees would no longer be involved in and distracted 



by the lawsuit, they would serve the public more effectively than they would without a 



substitution.     Overall,   the   bill   was   designed   to   increase   efficient   use   of   the   State's 

resources, and of employees' and attorneys' time.10 



                The State interprets the Senate committee proceedings as dismissing the 



possibility of judicial review.  In the State's view, the bill's purpose was to substitute the 



State for state employees "to the extent possible." Allowing judicial review "would strip 



the employee of the immunity and relief from litigation that the legislature sought to 



provide."    The superior court agreed, holding that "it is clear that the statute was to 



preclude some claims against the State, and to shield the [Attorney General]'s decision 



to certify from judicial review."       We disagree that the Senate minutes prove legislative 



intent to close off judicial review.       Though it is clear that the legislature was trying to 



provide an avenue for state employees to be dismissed from litigation, the Senate minutes 



simply do not mention judicial review of a decision to certify. 



                The House committee minutes from H.B. 488, the companion House bill 

to S.B. 388, are equally silent on whether an affirmative certification is reviewable.11 



Overall, the legislative history and legislative intent of AS 09.50.253 are inconclusive. 



        10      See Minutes, Sen. State Affairs Standing Comm. Hearing on S.B. 338, 23rd 



Leg., 1st Sess. (Mar. 11, 2004) (Testimony of Gail Voigtlander, Assistant Attorney 

Gen.). 



        11      See Minutes, House Labor & Commerce Comm. Hearing on H.B. 488, 23rd 



Leg., 1st Sess. (Mar. 1, 2004) (Testimony of Gail Voigtlander, Assistant Attorney Gen.). 



                                                   -8-                                             6655
 


----------------------- Page 9-----------------------

                 2.	     The   presence   of   a   provision       for   judicial   review    of   negative 

                         certifications does not preclude the reviewability of affirmative 

                         certifications. 



                 Though   AS   09.50.253   contains   no   language   pertaining   to   the   judicial 



review     of  affirmative    certifications,   AS     09.50.253(d)     provides     judicial   review   for 

employees who are denied certification.12            The State claims that the absence of a similar 



provision   for   affirmative   certifications   must   have   been   intentional,   and   leads   to   the 



conclusion that the legislature did not intend that affirmative certifications be reviewable. 



But we find another interpretation equally possible.   The presence of the provision may 



simply reflect the legislature's desire to provide an additional layer of protection for state 



employees.      After all, protecting state employees was the basis on which the Attorney 



General's office argued for the legislation in the first place.               In sum, the legislature's 



silence on judicial review of affirmative certifications is inconclusive. 



                 3.	     The   United   States   Supreme   Court's   holding   that   the   federal 

                         certification statute is subject to judicial review is persuasive 

                         authority. 



                 The federal counterpart to AS 09.50.253, the Westfall Act, substitutes the 



United States as the defendant for torts performed within the scope of employment.  The 



Westfall Act provides: 



                 Upon certification by the Attorney General that the defendant 

                 employee       was   acting   within    the   scope   of   his  office   or 

                 employment at the time of the incident out of which the claim 

                 arose, any civil action or proceeding commenced upon such 

                 claim   in   a   United   States   district   court   shall   be   deemed   an 



        12       See   AS    09.50.253(d)      ("If   the  attorney    general    refuses    to  make    the 



certification under (c) of this section, the state employee may, at any time before trial, 

petition the superior court to find and certify that the employee was acting within the 

scope of the employee's office or employment at the time of the incident out of which 

the claim arose."). 



                                                    -9-	                                              6655
 


----------------------- Page 10-----------------------

                action against the United States under the provisions of this 

                title and all references thereto, and the United States shall be 

                substituted as the party defendant.[13] 



The primary difference in wording between the federal statute and the Alaska statute is 



in the verbs used:      The former uses "shall be" ("shall be deemed an action against the 



United States") and the latter uses "is" ("is considered an action . . . against the state"). 



Because   the   Westfall   Act   and   AS   09.50.253   contain   nearly   identical   language,   and 



because AS 09.50.253 was based on the Westfall Act, federal decisions construing the 

Westfall Act are persuasive authority in construing AS 09.50.253.14 



                In Gutierrez de Martinez v. Lamagno,15 the Supreme Court held that the 



Attorney General's certification is reviewable.16          There, three Colombian citizens filed 



suit   against   a   special   agent   of   the   United   States   Drug   Enforcement   Administration 

following a car accident in Colombia.17          Acting on behalf of the Attorney General, the 



U.S.    Attorney    certified   that  the  agent   had   been    acting   within   the  scope    of  his 



        13      28 U.S.C.  2679(d)(1). 



        14      See Kinegak v. State, Dep't of Corr. , 129 P.3d 887, 890 (Alaska 2006) 



("The Federal Tort Claims Act has language that is nearly identical to the language in 

AS 09.50.250(3), and federal decisions construing the FTCA are persuasive authority in 

construing the Alaska statute."); Alaska Transp. Comm'n v. Alaska Airlines, Inc ., 431 

P.2d 510, 512 (Alaska 1967) (noting that because an Alaska statute was "patterned in 

many respects" after a federal statute, "federal decisions construing the Federal Act may 

be persuasive in construing analogous provisions of the Alaska Act"). 



        15      515 U.S. 417 (1995). 



        16      Id. at 423. 



        17      Id. at 420-21. 



                                                 -10-                                            6655
 


----------------------- Page 11-----------------------

employment, resulting in the substitution of the United States as the defendant.18                  After 



considering the language of the statute and policy considerations, the Supreme Court 

determined that the Attorney General's certification was reviewable.19 



                 The    State   attempts    to  distinguish   Gutierrez,     but   its  argument    is  not 



persuasive.    The State argues that Gutierrez turned on two aspects of the Westfall Act 



that are not found in the Alaska statute.          First, the Westfall Act states that the Attorney 



General's certification "shall conclusively establish scope of office or employment for 

purposes   of   removal,"20     and   the   State   argues   this   language   necessarily   implies   that 



certification is reviewable for other purposes.           Because AS 09.50.253 does not contain 



a similar provision, the State argues that the same analysis does not apply.   Second, the 



federal statute provides that the United States "shall be substituted" as the defendant, 



rather than "is substituted" as in the Alaska statute.             The State argues that the use of 



"shall"   explains   the   Supreme   Court's   conclusion   in  Gutierrez,   as   it   meant   that   "the 



statute could be interpreted as authorizing, but not requiring substitution." In the State's 



view, the Alaska statute's use of "is" rather than "shall" precludes ambiguity. 



                 The State's argument is unconvincing. It misinterprets the Supreme Court's 



analysis and, as Heisey suggests, ignores the policy considerations that were central to 



the case.  In Gutierrez, the Court began from the presumption that "when a Government 



official's determination of a fact or circumstance - for example, 'scope of employment' 



-     is   dispositive   of   a   court   controversy,   federal   courts   generally   do   not   hold  the 



determination   unreviewable.         Instead,   federal   judges   traditionally   proceed   from   the 



        18      Id. at 420. 



        19      Id. at 436-37. 



        20       28 U.S.C.  2679(d)(2). 



                                                   -11-                                                6655 


----------------------- Page 12-----------------------

strong presumption that Congress intends judicial review."21                 The Court then examined 



the language of the statute "to determine whether it overcomes the presumption favoring 



judicial review, the tradition of court review of scope certifications, and the anomalies 

attending foreclosure of review."22         Finding both interpretations plausible, the Court did 



not    initially  endorse    one   side's   interpretation    over    the  other.23   For    instance,   the 



defendant in Gutierrez interpreted the word "shall" in the Westfall Act - in "shall be 



deemed an action against the United States" and "shall be substituted" - to mean that 

the substitution is not reviewable, apparently taking "shall" to mean "must."24  The Court 



observed that "shall" generally means "must," but can also be used in place of "should," 

"will," or even "may."25          Ultimately concluding that the Westfall Act's language is 



"reasonably susceptible to divergent interpretation," the Court decided instead to "adopt 



the reading that accords with . . . [the] basic principle[] that executive determinations 

generally are subject to judicial review."26 



                 Along   similar   lines,   the   Court   noted   that   section   2679(d)(2)   states   that 



"certification of the Attorney General shall conclusively establish scope of office or 



employment for purposes of removal," while no such language appeared with regard to 



        21       Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424 (1995) (citations and 



internal quotation marks omitted). 



        22       Id . at 430. 



        23       Id. at 434. 



        24       Id. at 432-33. 



        25       Id . at 434 n.9. 



        26       Id. at 434. 



                                                    -12-                                              6655
 


----------------------- Page 13-----------------------

substitution.27    However, while the Court conceded that this may support the conclusion 



that the substitution is reviewable, the Court declined to commit to this interpretation.28 



Ultimately, the Supreme Court concluded that "[t]he Westfall Act's language is far from 

clear," prompting it to decide the case on policy grounds.29 



                 Given the similarity between AS 09.50.253(c) and the Westfall Act, we are 



persuaded by the Supreme Court's reasoning in Gutierrez:                    We conclude that the plain 



language and legislative history of AS 09.50.253(c) do not clearly favor or disfavor 



judicial review, and we therefore look to analogous cases and policy considerations to 



guide our determination. 



                 In several cases in the past we have reserved the right to judicial review 

within     the  context   of   administrative     agency    determinations.30      Here,   the    Attorney 



General's   decision   to   certify   is   analogous   to   an   administrative   adjudication.       In   an 



administrative adjudication, the legislature has delegated decision-making authority to 



a body other than the courts.          Similarly, AS       09.50.253(c) delegates authority to the 



Attorney General to make a legal determination: whether an employee was acting within 



the scope of his or her employment. 



         27      Id . 



         28      Id . 



         29      Id . ("We recognize that both sides have tendered plausible constructions 



of   a   text   most   interpreters   have   found   far   from   clear.   .   .   . Because   the   statute   is 

reasonably susceptible to divergent interpretation, we adopt the reading that accords with 

traditional understandings and basic principles: that executive determinations generally 

are subject to judicial review and that mechanical judgments are not the kind federal 

courts are set up to render.") (internal citations omitted). 



         30      See Alaska Pub. Interest Grp. v. State, 167 P.3d 27, 38-39 (Alaska 2007) 



(citing Alyeska Ski Corp. v. Holdsworth , 426 P.2d 1006, 1011-12 (Alaska 1967); K & L 

Distribs., Inc. v. Murkowski , 486 P.2d 351, 357 (Alaska 1971)). 



                                                    -13-                                              6655
 


----------------------- Page 14-----------------------

                In Alyeska Ski Corp. v. Holdsworth ,31 we considered the reviewability of 



leasing decisions by the Director of the Division of Lands and the Commissioner of 



Natural Resources.       We concluded that "it was not intended that Alaska's courts be 



divested   of   their   constitutionally   vested   duty   to   insure   compliance   with   the   laws   of 

Alaska."32 



                In K & L Distributors, Inc. v. Murkowski ,33          in spite of a statute denying 



review     of  an   administrative     action,  we    noted   our   constitutional    duty   to  ensure 



administrative compliance with Alaska's laws and concluded: 



                It is the constitutionally vested duty of this court to assure 

                that administrative action complies with the laws of Alaska. 

                We would not be able to carry out this duty to protect the 

                citizens of this state in the exercise of their rights if we were 

                unable     to  review   the   actions   of  administrative     agencies 

                simply because the legislature chose to exempt their decisions 

                from judicial review.      The legislative statement of finality is 

                one which we will honor to the extent that it accords with 

                constitutional guarantees.  But if the administrative action is 

                questioned as violating, for example, the due process clause, 

                we will not hesitate to review the propriety of the action to 

                the extent that constitutional standards may require.[34] 



                Turning to policy considerations, we agree with the United States Supreme 



Court that not permitting judicial review would lead to "ominous" consequences more 



severe than the alternative: 



                The local United States Attorney, whose conflict of interest 

                is apparent, would be authorized to make final and binding 



        31      426 P.2d 1006 (Alaska 1967). 



        32      Id. at 1012. 



        33      486 P.2d 351 (Alaska 1971). 



        34      Id. at 357 (internal citation omitted). 



                                                  -14-                                            6655
 


----------------------- Page 15-----------------------

                 decisions     insulating    both   the   United    States   and   federal 

                 employees   .   .   .   from   liability   while   depriving   plaintiffs   of 

                potentially     meritorious     tort   claims.   .   .   . Nor  should  we 

                 assume that Congress meant federal courts to accept cases 

                 only to stamp them "Dismissed" on an interested executive 

                 official's unchallengeable representation. The statute is fairly 

                 construed to allow petitioners to present to the District Court 

                 their      objections         to    the     A ttorney       G eneral's 

                 scope-of-employment            certification,    and    we    hold    that 

                 construction the more persuasive one.[35] 



                 We follow the same rationale here.  These policy considerations are all the 



more important in Alaska, where our underlying law guarantees plaintiffs greater rights 



against the government than plaintiffs have under federal law.   In cases against the U.S. 

government, immunity is the rule and liability the exception.36              But government liability 



is the rule in Alaska, while immunity is the exception.37                 Precluding judicial review 



would stand contrary to this principle.           It would allow the Attorney General to be the 



final arbiter of a case-dispositive issue, contrary to the presumption of judicial review. 



Finally,   judicial   review   helps   preserve   the   integrity   of   the   certification   process.   In 



Gutierrez, "the Attorney General herself urge[d] review, mindful that . . . the incentive 

of her delegate to certify is marked."38          In the absence of clear legislative intent to the 



contrary, and to avoid any due process concerns, we hold that the Attorney General's 



certification is reviewable. 



        35       Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 436-37 (1995). 



        36      Hayes v. United States , 539 F. Supp. 2d 393, 397 (D.D.C. 2008) ("The 



United States is immune from suit unless it waives its sovereign immunity through an act 

of Congress.") (citing F.D.I.C. v. Meyer , 510 U.S. 471, 475 (1994)). 



        37      Kinegak v. State, Dep't of Corr. , 129 P.3d 887, 889 (Alaska 2006). 



        38       515 U.S. at 417. 



                                                   -15-                                              6655
 


----------------------- Page 16-----------------------

               4.	    We remand the validity of the scope of employment certification 

                      for review by the superior court in the first instance. 



                The superior court has done no fact-finding in this case; the proceedings 



were stayed pending resolution   of the legal issues before this court.       In light of our 



conclusion that the Attorney General's certification is judicially reviewable, we remand 



to the superior court the question of whether the correctional officers were acting within 



the statutorily defined scope of their employment at the time of the incident.       Looking 

to the methodology adopted by the federal courts,39 we establish these principles: (1) the 



standard of review for the certification decision should be de novo; (2) the burden of 



proof lies upon the plaintiff challenging certification to prove that the defendants were 



not acting within the scope of their employment; (3) the court should apply the factors 

in AS 09.50.253(h)(1)40 for the scope-of-employment determination; (4) the outcome 



       39	     See, e.g.,Maron v. United States , 126 F.3d 317, 323 (4th Cir. 1997); Garcia 



v.  United States, 88 F.3d 318 (5th Cir. 1996); Kimbro v. Velten , 30 F.3d 1501, 1505 

(D.C. Cir. 1994); Schrob v. Catterson, 967 F.2d 929, 935 (3rd Cir. 1992);  Wilson v. 

Jones , 902 F. Supp. 673, 678-80 (E.D. Va. 1995). 



       40	     AS 09.50.253(h)(1) provides: 



               (h) In this section, 



               (1) "acting within the scope of the employee's office or 

               employment" means acts or omissions 



               (A) that the state employee is employed or authorized to 

               perform; 



               (B) of the state employee that occur substantially within the 

               authorized time and space limit; 



               (C) that are activated by a purpose to serve the state; and 



               (D) that do not constitute acting, or failing to act, with 

               wilful, reckless, or intentional misconduct, or with gross 

                                                                                (continued...) 



                                             -16-	                                       6655
 


----------------------- Page 17-----------------------

should be decided by the court, not a jury; and (5) the determination should be made 



prior to trial. 



                 If there are disputed issues of fact, we direct the court to hold an evidentiary 



hearing and make factual findings, then decide the certification question prior to trial. 



If no disputed issues of material fact exist, the court may resolve the issue on summary 



judgment. 



        B.	      Heisey's Claims In This Appeal Arise Out Of An Alleged Assault Or 

                 Battery For Which The State Is Otherwise Immune. 



                 1.	     The     superior    court    did   not   err   in  characterizing      Heisey's 

                         original "excessive force" claim as a claim for assault or battery. 



                 Alaska Statute   09.50.250(3) grants the State immunity for a claim that 



"arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, 



abuse of process, libel, slander, misrepresentation, deceit, or interference with contract 



rights."     In  his  original   complaint,     Heisey    advanced     several   alternate   theories    of 



        40	      (...continued)
 



                 negligence or malice; . . .
 



                 This   definition   is   narrower   than   the   definition   found   in   our   scope-of- 

employment case law pertaining to other non-state employers.  See, e.g., Taranto v. N. 

Slope Borough, 909 P.2d 354, 358-60 (Alaska 1996) (discussing our adoption of the 

Restatement       (Second)     of  Agency     rules   for  an   employer's     vicarious    liability   for 

intentional torts of employees); Doe v. Samaritan Counseling Center , 791 P.2d 344, 346- 

50 (Alaska 1990) (holding that intentional sexual misconduct by   therapist might be 

within scope of employment under Restatement (Second) of Agency rules), clarified by 

 VECO,   Inc.   v.   Rosebrock,   970   P.2d   906,   924   n.36   (Alaska   1999)   (disapproving   of 

possible   broad   interpretation   and   requiring   employees's   act   to   have   at   least   some 

motivation to serve employer).  See also Laidlaw Transit, Inc. v. Crouse Ex Rel. Crouse, 

53 P.3d 1093, 1098-99 (Alaska 2002) (affirming trial court's finding that school bus 

driver was within scope of employment when driving bus while impaired by marijuana 

use,   and   quoting   from   an   Arizona   opinion   that   "[a]   wrongful   act   committed   by   an 

employee while acting in his employer's business does not take the employee out of the 

scope of employment[.]"). 



                                                   -17-	                                            6655
 


----------------------- Page 18-----------------------

intentional     tort  and   negligence.      The    superior    court   grouped     his  claims    into  an 



"intentional     tort   claim"   and   a  "negligent    failure  to  train  claim."    Both,     the  court 

concluded, were barred by AS 09.50.250(3).41 



                 Before the superior court, Heisey conceded that "the complaint does in fact 



mention assault and battery."         But he also argued that in addition to assault and battery 



he alleged an "excessive force claim," a claim that he argued is distinct and is  not barred 



by the State's immunity.   He makes the same argument to us:  "[A] claim for excessive 



force . . . is not a claim for assault and battery."          The State disagrees, contending that 



excessive   force   is   the   functional   equivalent   of   assault   or   battery   and   that   Heisey   is 



"creatively   re-naming   his   causes   of   action"   in   order   to   avoid   the   State's   statutory 



immunity. 



                 We have not yet addressed whether an "excessive force" claim is barred by 



the State's sovereign immunity for common law assault or battery.                   As the State points 



out, however, other jurisdictions have determined that "excessive force" claims against 

a state are barred by immunity statutes similar to Alaska's.42             This is particularly true in 



the federal context, where a number of courts have interpreted the Federal Tort Claims 



Act as barring claims of "excessive force."              The leading case in this area is Stepp v. 



        41       Though the superior court does not use the words "assault" or "battery" in 



its order, presumably the superior court found that Heisey's claims were barred by the 

provision for assault and battery in AS 09.50.250(3).                 None of Heisey's allegations 

resemble or could be mistaken for any of the other torts listed in AS 09.50.250(3).  And 

both parties' briefs appear to rest on this assumption. 



        42       See, e.g., McKenna v. Julian , 763 N.W.2d 384, 391 (Neb. 2009) ("[An] 



action based on excessive force still arises out of claims of false arrest or battery and it 

is therefore barred as a matter of law by sovereign immunity."). 



                                                   -18-                                              6655
 


----------------------- Page 19-----------------------

United States,43 in which the Fourth Circuit held that the FTCA barred an excessive force 



claim against the government.            The court noted that "[i]t is well established that an 



intentional use of excessive force in making an arrest amounts to an assault and battery," 

and cited to cases from eight different states.44 



                 At a general level, we agree with Stepp that there is no distinction between 



"excessive   force"   and   "assault   and   battery"   for   purposes   of   the   immunity   statute. 



Alaska   Statute   09.50.250(3)   bars   claims   that   "arise[]   out   of"   assault   or   battery.    In 

Kinegak v. State, Department of Corrections ,45 discussing AS 09.50.250(3) in the false 



imprisonment context, we interpreted the statute as immunizing the government from 



"claims arising out of the conduct constituting reasonably well-recognized forms of false 

imprisonment." 46       Here, the factual basis for Heisey's "excessive force" claims gives us 



reason to believe that "excessive force" includes an assault or battery.                  Heisey alleged 



in his complaint that "without justification or provocation, two Correctional Officers . . . 



took down Mr. Heisey and slammed him to the floor face first."  To the degree that this 



description forms the basis for his "excessive force" claims, it fits easily into the common 

law definitions of assault and battery.47 



         43      207 F.2d 909 (4th Cir. 1953). 



         44      Id. at 911. 



         45      129 P.3d 887 (Alaska 2006). 



         46      Id. at 893. 



         47      Alaska relies on the Restatement (Second) of Torts for the elements of 



assault and battery.      Taylor v. Johnston, 985 P.2d 460, 464 (Alaska 1999).                   Under the 

Restatement definition, one commits assault if "(a) he acts intending to cause a harmful 

or   offensive   contact   with   the   person   of   the   other   or   a   third   person,   or   an   imminent 

apprehension   of   such   a   contact,   and   (b)   the   other   is   thereby   put   in   such   imminent 

                                                                                            (continued...) 



                                                    -19-                                               6655
 


----------------------- Page 20-----------------------

                 The wording of Heisey's remaining "excessive force" claims,48 however, 



alleges   negligence   in   conjunction   with   excessive   force:   (1)   that   the   State   of   Alaska 



breached      a  duty   to  Heisey    to  ensure   that   their  officers   "do   not   use  excessive    or 



unnecessary force in their treatment of inmates," and (2) that the officers "negligently 



used excessive force and caused injury and damage to [Heisey]."  This formulation does 



not avoid the immunity bar. 



                 We first note that regardless of the label that a claimant attaches to his or 



her tort, we will look first to the substance of the claim. If the substance of the claim 



shows that it falls within the intentional tort exceptions, "the courts will ignore this label 



and   treat   the   claim   as   one   within   the   list   of   exceptions   if   the   pleaded   facts   seem   to 

warrant."49    Turning to Heisey's "negligent[] use of excessive force" claim, we hold that 



in spite of its wording, this is an assault or battery claim.  The negligent application of 



too much force still implies that the alleged tort offenders intended to apply some degree 



of force, making the underlying action one of assault or battery. 

                 In B.R. v. State ,50 we addressed claims that included both intentional and 



negligent torts.    In B.R., a physician's assistant sexually assaulted a female inmate while 



        47       (...continued) 



apprehension." RESTATEMENT (SECOND) OF TORTS  21 (1965).   "Battery occurs when 

an actor intends to cause harmful or offensive contact with another and an offensive 

contact results." Id. at  18. 



        48       Though Heisey does not identify the specific allegations in his brief before 



this court, he did specify them in his Opposition to Motion to Dismiss. 



        49       Kinegak v. State, Dep't of Corr. , 129 P.3d 887, 893 (Alaska 2006) (citing 



PROSSER & KEETON ON THE LAW OF TORTS   131, at 1039 (5th ed. 1984)). 



        50       144 P.3d 431 (Alaska 2006). 



                                                    -20-                                              6655
 


----------------------- Page 21-----------------------

treating her at a correctional facility.51      The physician's assistant was an employee of the 



Department of Corrections.52             The inmate, B.R., reported the incident.53             The police 



launched an investigation.54  After the first incident, B.R. again experienced pain and was 



sent back to the jail's medical center.55        She requested an escort as protection against the 



physician's   assistant.56     In   spite   of   the   request,   the   same   physician's   assistant   again 



examined her, and again sexually assaulted her.57               B.R. sued the department on several 



tort   theories,   including   a   negligent   hiring   claim   and   the   failure   to   adequately   train 



employees.      The department moved for summary judgment, which the superior court 



granted   on   the   grounds   that   B.R.'s   claims   were   barred   by   AS   09.50.250(3).        B.R. 

appealed.58 



                 We held that AS 09.50.250(3) barred claims which "merely assert breaches 



of the department's duty to exercise due care in hiring, training, and supervising" the 

employee because such claims depended on the tort offender's employment status.59 



However, we also held that the State's immunity did not extend to theories of liability 



        51       Id. at 432. 



        52       Id. at 431. 



        53       Id. at 432. 



        54       Id. 



        55       Id. 



        56       Id. 



        57       Id. at 433. 



        58       Id. at 432-33. 



        59       Id. at 435. 



                                                    -21-                                               6655
 


----------------------- Page 22-----------------------

not   grounded   on   the   department's   employment   relation   with   the   tortfeasor.60         Thus, 



though     B.R.'s    complaint     did   focus   on   the  department's      duties   as  the   physician's 



assistant's employer, it also implicated   "a separate protective duty . . . . to exercise 

'reasonable care for the protection of [the prisoner's] life and health.' "61             This protective 



duty was 



                 "independent"         because      it  ha[d]    no    relation    to    [the 

                 employee's] employment status - in other words, regardless 

                 of   whether   [he]   was   acting   as   a   department   employee,   an 

                 independent       contractor,     a  privately    retained    physician's 

                 aid[e], or a volunteer health care provider when he examined 

                 B.R.  at   the   jail,   the   department   would   have   had   a   duty   to 

                 protect her and could have breached this duty by negligently 

                 exposing      her   to  an   unreasonable   risk   of   harm   from   [the 

                 tortfeasor].[62] 



                 Here, we conclude that Heisey's negligent training claim does not implicate 



the breach of an independent duty.   The claim is entirely dependent on the State's status 



as the correctional officers' employer.   Heisey's complaint neither implicates a separate 



protective duty as in B.R., nor gives reason to believe that the Department may have 



negligently supervised its employees in general.   We thus hold that Heisey's "excessive 

force" claims are barred by AS 09.50.250(3).63 



        60       Id. 



        61       Id.  (quoting State, Dep't of Corr. v. Johnson, 2 P.3d 56, 59-60 (Alaska 



2000)). 



        62       Id . at 436. 



        63       Heisey's original complaint included a pure negligence claim, alleging that 



"defendant       [S]tate  by   and   through     its  agents,   the  defendant     correctional     officers, 

negligently handled Mr. Heisey when they allowed him to fall on his face."  We take no 

position on this claim, which was not brought before us on the petition for review.  On 

                                                                                            (continued...) 



                                                    -22-                                               6655
 


----------------------- Page 23-----------------------

                2.	     Heisey's state constitutional law claims are barred by the State's 

                        intentional tort immunity under AS 09.50.250(3). 



                In    his  amended      complaint,    Heisey     alleged   violations    of  the  Alaska 



Constitution using largely the same facts as in his original complaint, but he removed the 



negligence claims against the individual officers.            The superior court permitted Heisey 



to amend his complaint, ruling that he may have a Bivens-type state constitutional claim. 



The State argues that it is immune from the claims in the amended complaint, regardless 



of whether they are characterized as "constitutional" torts or common law torts.  In the 



State's view, AS 09.50.250(3) bars "all tort claims" against the State that arise out of an 



assault   or   battery.   If   plaintiffs   could   circumvent   immunity   simply   by      claiming     a 



constitutional tort rather than a common law tort, this would "eviscerate the purpose and 



meaning of AS 09.50.250(3)." 



                Heisey contends that AS 09.50.250 does not provide immunity against state 



constitutional torts and that those claims against the State should be allowed to proceed. 



In addition, the amended complaint makes a constitutional tort claim for "excessive 



force," which Heisey says should not be characterized as an assault or battery. 



                After   examining   the   plain   meaning   of   the   statute   and   related   statutory 



provisions, we agree with the State. 



                         a.	     The    State    is  immune      from    state   constitutional      torts 

                                 arising out of an assault or battery. 



                Article    II,   section  21  of   the  Alaska   Constitution     provides    that   "[t]he 



legislature shall establish procedures for suits against the State."               In  Glover v. State, 



        63      (...continued) 



remand, Heisey is free to pursue his "negligent handling" claim   and any other pure 

negligence claims that are not precluded by this opinion. 



                                                   -23-	                                              6655 


----------------------- Page 24-----------------------

Department of Transportation, Alaska Marine Highway System ,64 we held that article II 



waived      the  State's   absolute    immunity,      and   that  "the  legislature    may    specify   the 



circumstances   under   which   the   [S]tate's   less-than-absolute   sovereign   immunity   will 

apply."65   Citing to article II and Glover, Heisey claims that the default rule in Alaska is 



that the State is liable for its wrongs, and exceptions to liability must be carved out by 



statute.   A   violation   of   constitutional   rights   is   a   form   of   tort,   as   noted   by Adkins   v. 

Stansel.66   As AS 09.50.250 does not enumerate constitutional torts among the torts the 



State    is  immune      from,    Heisey    argues    that  the   State   is  not  immune      from    state 



constitutional tort claims. 



                 Heisey correctly observes that in Alaska, the government generally is liable 

for its wrongs, while immunity is the exception. Numerous cases have made this point.67 



But   in   AS   09.50.250(3)   the   legislature   has   recognized   an   exception.68      We   are   not 



convinced that Heisey can evade the State's statutorily defined immunity simply by 



characterizing his claims as constitutional violations; we must look to the statute to 



understand whether the grant of immunity encompasses the particular constitutional 



violations alleged.   In construing AS 09.50.250, we look for a "construction that avoids 



        64       175 P.3d 1240 (Alaska 2008). 



        65      Id. at 1246, 1248-49. 



        66       204 P.3d 1031, 1034 (Alaska 2009). 



        67       See, e.g., Sea Hawk Seafoods, Inc. v. State , 215 P.3d 333, 337 (Alaska 



2009); Kinegak v. State, Dep't of Corr., 129 P.3d 887, 889 (Alaska 2006); Native Vill. 

of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 49 (Alaska 2004); Adams v. State , 555 P.2d 

235, 244 (Alaska 1976). 



        68       See Kinegak, 129 P.3d at 893. 



                                                   -24-                                              6655
 


----------------------- Page 25-----------------------

absurdity and is consistent with a reasonable interpretation of the terms of the statute."69 



                 In this case, the State provides a reasonable interpretation that is truer to the 



statute's language and purpose.   The plain language of AS 09.50.250 states, in relevant 



part: 



                 A person or corporation having a contract, quasi-contract, or 

                 tort claim against the state may bring an action against the 

                 state in a state court that has jurisdiction over the claim. . . . 

                 However, an action may not be brought if the claim 

                 . . . 

                 (3) arises out of assault, battery, false imprisonment, false 

                 arrest, malicious prosecution, abuse of process, libel, slander, 

                 misrepresentation, deceit, or interference with contract rights. 



Although any person alleging a "tort claim against the state" is authorized to bring a 



lawsuit against the State, claims that "arise out of assault [or] battery" are barred.  If 



anyone alleging a constitutional tort claim is also subject to the limitations of this statute, 



then if the individual's claim arises out of assault or battery, it too would be barred.  As 



a    preliminary     matter,    then,   we    must    address     whether     the   statute   contemplates 



constitutional torts in addition to common law torts. 



                 A    constitutional     tort  is  "any    action   for   damages      for  violation    of   a 

constitutional right against a government or individual defendants."70  Constitutional torts 



have been recognized in the United States since at least the late 1800s, when the Civil 



Rights Act of 1871 authorized civil damage actions against "[e]very person who, under 



color of [law] . . . subjects, or causes to be subjected, any citizen of the United States or 



other person within the jurisdiction thereof to the deprivation of any rights, privileges, 



         69      Premera Blue Cross v. State, Dep't of Commerce, Cmty. & Econ. Dev .,Div. 



of Ins., 171 P.3d 1110, 1120 (Alaska 2007). 



         70      Brown v. State , 89 N.Y.2d 172, 177 (New York 1996). 



                                                    -25-                                                  6655 


----------------------- Page 26-----------------------

or immunities secured by the Constitution and laws."71 



                 Because the word "tort" in AS 09.50.250 is unmodified, the plain language 



of AS 09.50.250 supports the State's contention that constitutional torts are included 



within the State's immunity.          Additional evidence is provided by AS 09.50.253(a) and 

(f), which were enacted at the same time as AS 09.50.250.72                 These sections provide: 



                 (a)   Except   as   provided   in  (f)   of   this   section,   the   remedy 

                 against the state provided by AS 09.50.250 for injury or loss 

                 of property or personal injury or death arising or resulting 

                 from   an   act   or   omission   of   a   state   employee   while   acting 

                 within the scope of the employee's office or employment is 

                 exclusive of any other civil action or proceeding for money 

                 damages   by  reason of the same subject matter against the 

                 employee whose act or omission gave rise to the claim or 

                 against the estate of the employee.  Any other civil action or 

                 proceeding for money damages arising out of or relating to 

                 the    same    subject    matter    against    the   employee      or   the 

                 employee's estate is precluded without regard to when the act 

                 or omission occurred. 

                  . . . . 

                 (f) This section does not extend or apply to a civil action or 

                 proceeding against an employee of the state that is brought 

                 for a violation of the Constitution of the United States or that 

                 is brought for a violation of a law of the state under which an 

                 action    or   proceeding     against    an   employee      is  expressly 

                 authorized.[73] 



        71       Imbler v. Pachtman , 424 U.S. 409, 417 & n.10 (1976).                 The Civil Rights 



Act of 1871 is now codified at 42 U.S.C.  1981 et seq. 



        72       See Bullock v. State, Dep't of Cmty. & Reg'l Affairs, 19 P.3d 1209, 1214-15 



(Alaska 2001) (noting that we "will generally construe statutes in pari materia where 

two   statutes   were   enacted   at   the   same   time,   or   deal   with   the   same   subject   matter.") 

(internal quotation marks and citation omitted). 



        73       28 U.S.C.  2679(b)(1)-(2) (1988) (This language makes the Federal Tort 



                                                                                           (continued...) 



                                                    -26-                                              6655
 


----------------------- Page 27-----------------------

                 By   the   statute's   terms,   the   Alaska   legislature   made   AS   09.50.250   the 



exclusive remedy for tort claims against the State, except for alleged violations of the 



U.S. Constitution - that is, federal constitutional torts. There is no exception, however, 



for state constitutional torts.   Because AS 09.50.250 provides the exclusive remedy for 



actions   against   state   employees   alleging   state   constitutional   violations,   it   bars   state 



constitutional torts "arising out of a claim" for assault or battery as well. 



                 We conclude that AS 09.50.250 encompasses state constitutional torts.  A 



claim for a state constitutional violation arising out of an assault or battery is therefore 



also barred by the State's immunity. 



                         b.	     Heisey's state constitutional claims arise out of an assault 

                                 or battery. 



                 If AS 09.50.250 includes state constitutional violations within its scope, 



then a state constitutional violation that "arises out of" assault or battery would be barred 



by the State's immunity.  In his amended complaint, Heisey alleged that the correctional 



officers "performed a 'take-down' without provocation" and "slammed plaintiff into a 



concrete floor, slamming his face and head into the floor and caus[ing] serious physical 



injury   and   disfigurement."       Based   on   these   facts,   Heisey   alleged   two   instances   of 



constitutional violations.       First, the correctional officers' action "constitutes the use of 



excessive force in violation of [a]rticle I, [s]ection 12 of the Constitution."  Second, the 



State of Alaska violated its duty to institute "proper training programs that [e]nsure 



prison employees do   not use excessive force and violate the constitutional rights of 



prisoners," which violated Heisey's due process rights and violated his "right to be free 



from the use of excessive force" under the Alaska Constitution. 



        73       (...continued) 



Claims Act the exclusive remedy for federal tort claims.). 



                                                    -27-	                                               6655 


----------------------- Page 28-----------------------

                Heisey's constitutional claims clearly arise out of an alleged assault or 



battery.   As   the   State   is   immune   from   assault   and   battery   claims,   we   conclude   that 



Heisey's state constitutional claims are barred by the State's immunity. 



        C.	     Heisey      May      Not     Bring     A   Bivens-Type        Claim      Under      The 

                Circumstances Of This Case. 



                A Bivens claim is a judicially created claim which gives relief to plaintiffs 

claiming     federal    constitutional    violations   by   federal   agents.74    Where      the   U.S. 



Constitution does not explicitly provide a private action for damages, a federal court may 



imply such a remedy under Bivens v. Six Unknown Named Agents of the Federal Bureau 

of Narcotics,75  Bivens claims derive their name from this 1971 United States Supreme 



Court case that was the first to recognize this doctrine.           In Bivens , the plaintiff alleged 



that federal agents entered his apartment without a warrant, searched the apartment, then 

arrested him on an alleged drug violation.76            No federal statute authorizes claims for 



violation of the Fourth Amendment, which gives the right to be free from unreasonable 



search and seizures.        In spite of this, the Supreme Court implied a private action for 



damages, reasoning that the importance of the right implies that a remedy exists for 

violation of that right.77     Since the Supreme Court decision, several state courts have 



applied Bivens to imply state law constitutional claims.78            Alaska has not - while we 



        74      See  BLACK 'S     LAW    DICTIONARY       179   (8th   ed.   2004)   (defining   "Bivens 



action"). 



        75      403 U.S. 388 (1971). 



        76      Id. at 389. 



        77      Id. at 389, 396. 



        78      See generally JENNIFER FRIESEN ,STATE CONSTITUTIONAL LAW :LITIGATING 



INDIVIDUAL RIGHTS , CLAIMS , AND DEFENSES  7.07 (4th ed. 2006).  See, e.g., Binette v. 

                                                                                        (continued...) 



                                                  -28-	                                           6655
 


----------------------- Page 29-----------------------

have considered possible Bivens-type claims in the past, we have never found one to be 

viable under the facts presented.79 



                As a threshold matter, a litigant must establish two requirements before we 



will consider a possible Bivens-type claim:  that "alternative remedies" do not exist; and 

that the constitutional violation is "flagrant."80     We begin with the alternative remedies 



prong, finding that it is dispositive in this case. 



                1.     Alternative remedies bar Heisey from Bivens-type relief. 



                The State argues that Heisey is barred from Bivens-type relief because he 



had an alternative remedy - he could have brought a 42 U.S.C.  1983 claim, which 



allows plaintiffs to sue persons "act[ing] under the color of state law" for deprivations 

of constitutional rights.   A  1983 claim "on its face admits of no immunities,"81 and the 



State could not have certified the officers against such a claim.          Heisey contends that a 



        78      (...continued) 



Sabo, 710 A.2d 688, 689 (Conn. 1998) (direct cause of action under Art. 1,  7 (security 

from searches and seizures) and Art. 1,  9 (right of personal liberty)); Brown v. State of 

New York , 674 N.E.2d 1129, 1138-39 (N.Y. 1996) (direct cause of action for alleged 

violation of equal protection and search and seizure clauses of state constitution); Corum 

v. Univ. of N. Carolina, 413 S.E.2d 276, 290 (N.C. 1992) (direct cause of action under 

state constitution's free speech clause). 



        79       See Adkins v. Stansel, 204 P.3d 1031, 1034 (Alaska 2009) ("Although 



federal law allows direct tort actions for some violations of the federal constitution, we 

have not recognized a private right of action for damages based on a violation of the 

Alaska Constitution. We have indicated only that we will not recognize such a remedy 

if the constitutional violation is not flagrant or if alternative remedies exist." (internal 

citations omitted)). See also Lowell v. Hayes, 117 P.3d 745, 754 n.30 (Alaska 2005) 

(noting   this   court's   agreement   with   the   5th   Circuit's   flagrancy   requirement);  Dick 

Fischer Dev. No. 2 v. Dep't of Admin. , 838 P.2d 263, 268 (Alaska 1992). 



        80      See Adkins, 204 P.3d at 1034. 



        81      Imbler v. Pachtman , 424 U.S. 409, 417 (1976). 



                                                -29-                                           6655
 


----------------------- Page 30-----------------------

 1983 claim is not an alternative remedy under the meaning of Bivens for two reasons. 



First, he argues that "a claim based on a violation of the Alaska Constitution cannot be 



asserted   in   federal   court   under   that   provision."    Second,   he   asserts   that   the   Alaska 



Constitution offers broader protections than the U.S. Constitution, arguing that "this 



Court has an obligation to expand on state constitutional principles and to enforce and 



protect state constitutional rights." 



                 We disagree with Heisey's reading of the law. With regard to Heisey's first 



argument,   it   is   true   that   42   U.S.C.      1983   allows   claims   against   state   officials   for 



violation of the U.S. Constitution, not state constitutions.                However, an "alternative 

remedy" may include federal remedies.                In Hertz v. Beach ,82 we recognized that the 



availability of a federal constitutional remedy can block a state Bivens-type claim.  In 



Hertz , an inmate sued two nurses and a dentist for failing to give him timely or adequate 

dental treatment.83     The inmate claimed violations of both the federal and Alaska cruel 



and unusual punishment provisions.84            We held that "[m]edical malpractice and federal 



constitutional      law    provide     adequate     remedies"      for   the   inmate's     alleged    state 



constitutional violations, and declined to find a private cause of action under the Alaska 

constitution.85  Because federal constitutional claims may provide adequate remedies for 



state constitutional violations, Heisey's argument fails.86 



        82       211 P.3d 668 (Alaska 2009). 



        83       Id. at 672. 



        84       Id. at 677. 



        85       Id. at 677 n.12. 



        86       Our   decision   in Hertz  tracks   U.S.   Supreme   Court   case   law.        The   U.S. 



Supreme Court held that where state tort law remedies are available, a Bivens action will 

                                                                                           (continued...) 



                                                    -30-                                              6655
 


----------------------- Page 31-----------------------

               Heisey's second main contention is that the Alaska   Constitution offers 



broader protections than the U.S. Constitution, implying that a federal constitutional 



remedy offers weaker relief than a state constitutional remedy.  However, an alternative 



remedy need not be an exact match.          The pertinent question is whether a  1983 claim 



would provide some type of relief for Heisey, even if it is not the equivalent of the relief 



he would get under a state Bivens claim.        That is the case here. 



               Facially,    the  federal   constitutional   provisions  that   Heisey  cites either 



exactly or substantially match the wording of the Alaska Constitutional provisions he 



claims were violated.  Thus, the rights that they guarantee are substantially the same.  In 



his amended complaint, Heisey claimed that he had a "constitutional right under [a]rticle 



1, [s]ection 12 . . . not to be subject to cruel and unusual punishment.  This right includes 



the right not to be subjected to the use of excessive force by Correctional Officers." 



Heisey acknowledges that the Eighth Amendment of the U.S. Constitution would allow 



him to bring a similar federal constitutional claim for excessive force.  Both the federal 



and state constitutions read, "[e]xcessive bail shall not be required, nor excessive fines 



imposed, nor cruel and unusual punishments inflicted." 



               The amended complaint alleges a second state constitutional violation - 



that the failure to train and supervise the officers, and the inadequacy of the regulations 



governing the "training, discipline, and supervision of Officers using force," violated 



Heisey's due process rights under article I, section 7 of the Alaska Constitution, as well 



as his right to be "free from the use of excessive force" under article 1, section 12. 



Article 1, section 7, the Due Process Clause of the Alaska Constitution, states that "[n]o 



        86     (...continued) 



not be recognized in federal court.       Corr. Servs. Corp v. Malesko, 534 U.S 61, 72-74 

(2001).  The holding of Hertz applies similar reasoning, that the presence of a federal or 

state alternative remedy will block a Bivens cause of action. 



                                               -31-                                            6655 


----------------------- Page 32-----------------------

person shall be deprived of life, liberty, or property, without due process of law."  The 



wording of the state provision mirrors the Fifth Amendment of the U.S. Constitution. 



On appeal Heisey also argues that both article I, section 14 of the Alaska Constitution 



and the Fourth Amendment of the U.S. Constitution protect against "the unreasonable 



seizure of a person through the use of excessive force." 



                 By matching his state constitutional claims to federal constitutional claims, 



Heisey implicitly acknowledges that federal claims would, in fact, provide a remedy 



comparable   to   his   state   constitutional   claims.    While   a      1983   claim   may   not   be   a 



complete remedy, we hold that it is a sufficient "alternative remedy." 



                 Finally, we note that our holding that the Attorney General's certification 



is judicially reviewable provides Heisey with at least one other possible remedy - a 



judicial challenge to the scope-of-employment certification. 



                 2.	     The   possibility   that   a      1983   claim   is   now   barred   does   not 

                         preclude it from being an "alternative remedy." 



                 The superior court reasoned that because the State has asserted its sovereign 



immunity through certification of the officers' conduct, a  1983 claim is now barred 



because the claim would proceed against the State, and the State is not a "person" for 



purposes of a  1983 claim.          Accordingly, the superior court decided that no alternate 



remedy exists, and that this may be a situation where a Bivens remedy is appropriate. 

The State argues that the court misinterpreted the law.             Citing to Lowell v. Hayes ,87 the 



State contends that it does not matter   if the resolution of the certification issue will 



ultimately bar the alternative remedy; the fact that an alternative remedy once existed is 



enough to bar a Bivens action.         We agree with the State. 



                 In  Lowell ,   a   plaintiff   attempted   to   bring   a   state Bivens  claim   after   his 



        87       117 P.3d 745 (Alaska 2005). 



                                                   -32-                                               6655 


----------------------- Page 33-----------------------

original defamation claim was dismissed.88             Because the claim was dismissed, he argued 



he had no alternative remedy.89          We ruled that this argument is "facially untenable. . . . 



Surely the inadequacy of alternative remedies for alleged constitutional violations cannot 

be measured per se by the dismissal or defeat of those remedies."90                   We reaffirmed this 



holding   in  Krause   v.   Matanuska-Susitna   Borough ,91            in   which   we   held   that   even   if 



potential     statutory    claims    were    time-barred,     this  did   not   preclude    a  finding    that 

alternative remedies existed.92         The existence of the remedy itself is enough to block a 



Bivens-type action, even if procedurally that remedy is no longer available.93                       Even if 



Heisey may no longer bring a  1983 claim, an "alternative remedy" existed for Bivens 



            94 

purposes. 



                 3.	     We      need    not    reach     the   question     of   whether      the    alleged 

                          constitutional violations are flagrant. 



                 As the availability of an alternative remedy is dispositive on the issue of a 



Bivens-type   remedy,   we   decline   to   reach   the   question   of   whether   the   constitutional 



violations are "flagrant." 



         88      Id. at 747.
 



         89      Id. at 754.
 



         90      Id.
 



         91      229 P.3d 168 (Alaska 2010).
 



         92      Id. at 180. 



         93      Id. at 175. 



         94      On remand, Heisey is free to amend his complaint to add federal  1983 



claims on a relation-back basis. 



                                                     -33-	                                              6655
 


----------------------- Page 34-----------------------

V.      CONCLUSION 



               Because   (1)   the   Attorney   General's   certification   is   subject   to   judicial 



review, (2) except as noted, Heisey's claims are barred by the State's immunity if the 



Attorney General's certification stands, and (3) Heisey does not have a Bivens-type 



remedy under the circumstances of this case, we VACATE the superior court's orders 



on Heisey's motion to amend and the State's motion to dismiss, and we REMAND for 



further proceedings consistent with this opinion. We direct the superior court on remand 



to review the Attorney General's certification prior to trial. 



                                               -34-                                           6655
 

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