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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alpine Industries v Feyk (05/11/2001) sp-5410

Alpine Industries v Feyk (05/11/2001) sp-5410

     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.


                              )    Supreme Court No. S-9169
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-8166 CI
LORI FEYK,                    )    O P I N I O N
             Appellee.        )    [No. 5410 - May 11, 2001]

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

          Appearances:  Eric J. Brown, Jermain, Dunnagan
& Owens, P.C., Anchorage, for Appellant.  Gary M. Guarino,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.

          Before: Matthews, Chief Justice, Eastaugh,
          Bryner, and Carpeneti, Justices. [Fabe,
Justice, not participating.]  

          EASTAUGH, Justice.

          Alpine Industries, Inc. sued Dr. Lori Feyk, a public
health official with the Alaska Department of Health and Social
Services, for libel after she authored a public health bulletin
critical of Alpine's air cleaning products.  Because we conclude
that absolute official immunity protects the authors of state
public health bulletins, we affirm the superior court's grant of
summary judgment for Dr. Feyk.
          A private citizen contacted the Alaska State Department
of Health and Social Services (DHSS) in 1997 regarding the possible
health effects of ozone-generating air cleaning devices.  The
Commissioner of Health and Social Services referred the inquiry to
Dr. John Middaugh, Chief of the Section of Epidemiology. 
Dr. Middaugh asked a DHSS public health specialist, Dr. Lori Feyk,
to investigate the matter and report back to him.
          Dr. Feyk researched the issue, speaking to health
officials in other states, reading materials produced by the
Environmental Protection Agency, and reviewing other scientific
reports from private and public sources.  Dr. Feyk met with
Dr. Middaugh to present her conclusions; after considering her
recommendations, Dr. Middaugh asked Dr. Feyk to prepare a public
health bulletin to be issued by DHSS.  Dr. Feyk drafted the public
health bulletin based on the reports she had gathered. 
Dr. Middaugh made a few minor changes and authorized the bulletin's
release to the public; it was published at his direction on
September 8, 1997.
          The bulletin, titled "Ozone Generators   Warning   Not
For Occupied Spaces," stated that ozone "is a potent lung irritant
that can cause respiratory distress, and levels of ozone that clean
air effectively are unsafe to human health."  The bulletin
continued: "The Alaska Division of Public Health is warning
Alaskans not to use ozone generating devices in occupied spaces
such as vehicles or residential homes."  The bulletin cited studies
or reports from the U.S. Food & Drug Administration, the
Environmental Protection Agency, the American Lung Association,
Consumer Reports, and a private journal.  It also stated that the
State of Minnesota had prevailed in a lawsuit against "Alpine Air
Products, Inc.," and that a Minnesota court had "found that the
company had violated Minnesota consumer fraud and antitrust laws by
making false and misleading claims about the efficacy and safety of
ozone-generating Alpine purifiers."
          Alpine Industries, Inc. (Alpine) manufactures ozone-
generating air cleaning devices and sells them in Alaska through
independent resellers.  When Alpine learned of the public health
bulletin, its president wrote the DHSS commissioner complaining
that the bulletin was "false and misleading" and requesting a
retraction.  On September 19, 1997, an attorney for Alpine wrote an
eleven-page letter to Dr. Feyk detailing alleged scientific and
legal inaccuracies in the bulletin.  Neither the commissioner nor
Dr. Feyk responded to the two letters.
          On October 1, 1997, Alpine sued Dr. Feyk for libel,
tortious interference with business relationships, and unfair trade
practices.  On October 29, 1998, Dr. Feyk moved for summary
judgment on the libel claim, and on November 2, she moved for
summary judgment on the legal question of whether she was protected
by "official immunity."  The superior court granted both motions in
May 1999.  Alpine appeals both grants of summary judgment, as well
as the superior court's award of attorney's fees to the state,
which had incurred expense defending Dr. Feyk.
     A.   Standard of Review
          We review a grant of summary judgment de novo, viewing
the facts "in the light most favorable to the losing party." [Fn.
1]  A superior court's award of attorney's fees is reviewed under
the abuse of discretion standard. [Fn. 2]
     B.   Official Immunity
          "Under Alaska law, public officials in the executive
departments of government have either absolute or qualified
immunity from tort suits for discretionary acts committed within
the scope of their authority." [Fn. 3]  In Aspen Exploration v.
Sheffield, [Fn. 4] we announced a three-step process for
determining the existence and scope of official immunity.  First,
does the doctrine of official immunity apply to the state
official's conduct? [Fn. 5]  Second, if it does apply, is the
immunity absolute or qualified? [Fn. 6]  And third, if it is only
a qualified immunity, did the state official act corruptly,
maliciously, or in bad faith? [Fn. 7]
          1.   Official immunity applies to Dr. Feyk's speech.
          We have held that official immunity applies to an
official's conduct if (1) it is within the scope of the official's
authority, and (2) it is a discretionary act. [Fn. 8]  Alpine does
not argue that Dr. Feyk acted outside the scope of her authority by
drafting the bulletin, but it does dispute whether her act was
discretionary.  Alpine argues that Dr. Feyk's research and drafting
of the public health bulletin was a purely "ministerial" act, and
therefore not entitled to any immunity.
          Alpine relies on Urethane Specialties, Inc. v. City of
Valdez, [Fn. 9] where we applied a "planning-operational test" to
determine whether a state function was discretionary or ministerial
for sovereign immunity purposes. [Fn. 10]  Under that test, the
state's broad policy decisionmaking may be protected, while the
actual implementation may not be. [Fn. 11]  But we explained in
Aspen that in the official immunity context, we adhere to the
definition of discretionary acts expressed in State v. Haley. [Fn.
12]  We held in Haley that for the purposes of official immunity,
"'[d]iscretionary' acts are those requiring 'personal deliberation,
decision and judgment.'" [Fn. 13] 
          Although Alpine strives to paint Dr. Feyk's conduct as
something less than discretionary, the record is clear that she
performed the research and provided the analysis that formed the
basis of the bulletin.  Her supervisor made only a few changes to
the bulletin before deciding to publish it; the content was first
and foremost Dr. Feyk's.  The process of researching and drafting
such a bulletin certainly requires "deliberation, decision and
judgment." [Fn. 14]  The mere fact that Dr. Feyk performed these
discretionary functions at the direction of her supervisor does not
change their intrinsic nature.
          Because Dr. Feyk acted within the scope of her authority
when she performed these discretionary acts, the doctrine of
official immunity applies to Dr. Feyk's speech.
          2.   Dr. Feyk's immunity is absolute.
          We now consider whether Dr. Feyk's official immunity
should be absolute or qualified.  The superior court concluded that
Dr. Feyk's speech was protected by absolute official immunity.  If
the immunity is absolute, the inquiry ends; if it is only
qualified, "inquiry into motive becomes relevant." [Fn. 15]  We
explained in Aspen that three factors were relevant when deciding
whether absolute or qualified immunity should apply:
          (1)  The nature and importance of the function
that the officer performed to the administration of
government (i.e.[,] the importance to the public that
this function be performed;  that it be performed
correctly;  that it be performed according to the best
judgment of the officer unimpaired by extraneous

          (2)  The likelihood that the officer will be
subjected to frequent accusations of wrongful motives and
how easily the officer can defend against these
allegations; and

          (3)  The availability to the injured party of
other remedies or other forms of relief (i.e.[,] whether
the injured party can obtain some other kind of judicial
review of the correctness or validity of the officer's
action).[ [Fn. 16]]

We conclude that the first two factors weigh heavily in favor of
recognizing an absolute official immunity for Dr. Feyk's speech.
          The first Aspen factor is present.  Timely issuance of
public health bulletins is of great public importance. It is
likewise important that this function be performed correctly,
according to the officer's best judgment, unimpaired by threats of
a damage lawsuit against the individual officer.  Denying absolute
immunity to public health officials who issue warnings could
discourage them from executing their jobs faithfully, diligently,
and accurately, and could hinder proper performance of important
government functions.
          The second Aspen factor is also present.  Product
manufacturers and sellers potentially have strong incentives to
file damage lawsuits against individual officers to rebut public
health bulletins adverse to their products and to seek compensation
for harm caused by publication.  We assume that they may have
legitimate complaints about a bulletin's accuracy.  And some
bulletins might be indefensibly defamatory had they been uttered by
private persons.  But regardless of the validity of such lawsuits,
less-than-absolute immunity would increase their frequency. 
Defending against them would implicate the official's reasoning and
good faith and would require strenuous and time-consuming defense
efforts.  Such efforts would inevitably divert attention from
important official duties.
          We are not ruling on the accuracy of Dr. Feyk's bulletin,
although we note that Alpine submitted a substantial collection of
scientific literature to rebut its substance.  This simply
illustrates that challenges to public health bulletins may entail
significant scientific disputes.  Because a bulletin's gross
misrepresentation of the relevant scientific evidence may suggest
the author's bad faith, [Fn. 17] permitting such a challenge in
context of a libel suit would require a jury to weigh disputed
scientific evidence.  The resulting litigation would be complex and
would burden the defendant official and any employer defending the
official.  This would not be in the public interest. [Fn. 18]
          In many such cases the governmental employer will agree
to defend and indemnify the official who is sued individually.  But
those agreements may be qualified by reservations, creating anxiety
and conflicting litigation aims, especially if the suit alleges
ultra vires intentions or seeks exemplary damages.  Even if the
public employer is defending the officer, such claims may justify
retention of private counsel and cause personal stress.  The threat
of accusations against individual officers could therefore
discourage all but the most courageous officials.  In the field of
public health, publication should not depend on the fortitude of
individual officials.
          Finally, frivolous accusations may be filed in a
harassing effort to pressure the author to recant and to deter
others from publishing similar warnings.  Absent absolute immunity,
significant disruption would be likely before a court or jury could
reject such accusations for lack of merit or upon successful
assertion of a qualified immunity defense. Absolute immunity
forecloses this threat.
          The third Aspen factor -- whether plaintiffs such as
Alpine have alternative remedies when they are harmed by a public
health official's allegedly defamatory speech -- is problematic.  
          Alpine argues that giving Dr. Feyk absolute immunity will
leave it without a remedy.  The attorney general, in behalf of
Dr. Feyk, does not claim that Alpine had any alternative judicial
or judicially appealable administrative remedy, but argues that
Alpine has the alternative remedy of engaging in counter-speech and
publishing opinions and information favorable to the safety and
effectiveness of its ozone devices.  The attorney general contends
that the proper forum for scientific and public health disputes "is
the arena of scientific and industry research and public debate and
opinion." [Fn. 19] 
          The remedy Dr. Feyk identifies -- counter-speech -- is
not the kind of remedy contemplated in Aspen.  DHSS is not simply
another voice: it speaks in the public interest, backed by the
authority of the state, and its warnings receive a strong
presumption of objectivity.  Forcing Alpine to compete with the
state's public health pronouncement in the marketplace of ideas is
not the kind of remedy that satisfies the third Aspen factor. 
Aspen stated that courts should consider "whether the injured party
can obtain some other kind of judicial review of the correctness or
validity of the officer's action." [Fn. 20]  An opportunity to
engage in public debate was not the sort of remedy Aspen intended. 
          Because the attorney general has not identified any other
possible remedies, we are not willing to decide sua sponte whether
Alpine might have any effective judicial or judicially appealable
administrative opportunities to respond to the bulletin or force
its retraction. [Fn. 21]  We therefore assume here that the third
Aspen factor is not satisfied.  Nonetheless, the first two Aspen
factors weigh so heavily in favor of absolute immunity in this case
that the assumed absence of the third factor is not consequential. 
          Dr. Feyk is therefore entitled to absolute immunity for
her allegedly defamatory speech.  As the author of a public health
bulletin, Dr. Feyk was performing an important governmental
function.  If immunity were only qualified, it would invite damage
lawsuits that would hinder this function.  The absence of any
identified alternative avenues for relief does not change our
conclusion.  This absolute immunity protects all public officials
who, in the course of performing discretionary government functions
within the scope of their authority, speak on matters of health and
public safety.  
     C.   Attorney's Fees
          Alpine contends that because Dr. Feyk did not move for
summary judgment until thirteen months after Alpine filed its
lawsuit, the superior court abused its discretion by awarding Rule
82 attorney's fees against Alpine.  It argues that Dr. Feyk's delay
in moving for relief wasted attorney time and costs.  Dr. Feyk
quite reasonably responds that the delay was caused by discovery,
especially the review of the scientific evidence presented by
Alpine.  Alpine has offered no persuasive reasons justifying a
conclusion to cause us to think that the superior court abused its
discretion in awarding attorney's fees against Alpine.
          The superior court's grant of summary judgment and its
award of attorney's fees are AFFIRMED.


Footnote 1:

     Thoma v. Hickel, 947 P.2d 816, 818 (Alaska 1997).

Footnote 2:

     See Mount Juneau Enter., Inc. v. Juneau Empire, 891 P.2d 829,
834 (Alaska 1995).

Footnote 3:

     Thoma, 947 P.2d at 818.

Footnote 4:

     739 P.2d 150 (Alaska 1987).

Footnote 5:

     See id. at 154.

Footnote 6:

     See id.

Footnote 7:

     See id. at 158, 160.

Footnote 8:

     See id. at 154-56.

Footnote 9:

     620 P.2d 683 (Alaska 1980), declined to follow by Taranto v.
North Slope Borough, 992 P.2d 1111, 1114-16 (Alaska 1999).

Footnote 10:

     See Urethane Specialities, 620 P.2d at 688.

Footnote 11:

     See id.

Footnote 12:

     687 P.2d 305 (Alaska 1984), cited in Aspen, 739 P.2d at 155.

Footnote 13:

     Haley, 687 P.2d at 316 (quoting William Prosser, Handbook of
the Law of Torts sec. 132, at 988-89 (4th ed. 1971)), quoted inAspen,
739 P.2d at 155.

Footnote 14:

     Haley, 687 P.2d at 316 (quoting Prosser, supra note 13).

Footnote 15:

     Aspen, 739 P.2d at 160.

Footnote 16:

     Id. at 159-60.

Footnote 17:

     See Moffatt v. Brown, 751 P.2d 939, 946 (Alaska 1988).

Footnote 18:

     See Aspen, 739 P.2d at 161 (recognizing only qualified
immunity for governor's alleged defamation in part because trial
proceedings would not be "excessively complex or lengthy").

Footnote 19:

     Alpine also asserts that the superior court acknowledged that
Alpine had no other remedy available.  Actually, it is doubtful
that the superior court ruled that there was no alternative remedy. 
The court stated that Alpine has full access "to the arena of
public opinion," and that "the other remedies . . . leg is also
met."  This indicates that the court had actually agreed with the
attorney general's argument, made on behalf of Dr. Feyk, that
counter-speech is an effective alternative remedy. 

Footnote 20:

     Aspen, 739 P.2d at 160 (emphasis added). 

Footnote 21:

     Although we are not asked to decide on appeal whether Alpine
could have, by supplying relevant information, persuaded DHSS to
qualify or retract the bulletin, we do note that Alpine sued Dr.
Feyk only twelve days after its attorney wrote a letter of protest
to her.  Perhaps because of this relatively short interlude before
Alpine filed suit, the record does not indicate whether DHSS would
have responded substantively to Alpine's protests, absent the
lawsuit against its employee.  We do not assume that DHSS would
altogether fail to consider a manufacturer's retraction request
supported by creditable data if given a fair opportunity to
evaluate the evidence.