State, Department of Public Safety v. Brown
794 P.2d 108
Alaska
1990
Check Treatment

*1 ists, of consequences the such a read- often suffered I do not favor promulgated. delay. resulting confusion and/or ing reasons. the for two well, Also, employers, have suf- small First, say cross-exami- wrong it is that Instead problems. from the same fered price tag. gener- carry a may not nation providing originally court what the and deposition witness litigation, al civil intended, frequently became Smallwood losing party to the after costs are shifted legendary “simple, impediment to the 79. course. Civ.R. judgment as a matter remedy” the workers’ com- speedy that field of workers’ com- playing On tilted the provide. pensation system was meant to employer must reimburse pensation, the proceed- (Footnotes omitted.) the employee the “for costs employee ings” wins. 23.30.- position, on more than The Board’s based (The employee not have a 145(b). does persuasive. The experience, is a decade obligation employer pre- when the similar in the normal cost disincentive inherent vails.) for which the costs pay appar- deposer rule which makes employee include reimburse the must in deter- ently importance of considerable paid by the em- cross-examination costs of depositions. ring needless interpretation of ployee under Board’s reasons, I inter- For the would not above Smallwood,3 or, Thus, litigant, when a shifting. pret require cost Smallwood loses, compensation, employer, desiring depose or examine party A a price. has cross-examination initial report of a should bear the author Board, Second, inter- according to the deposition or examination. cost lead need- pretation of Smallwood today’s I result of concur resulting delay, oppres- depositions less decision. economically party— sion weaker economic generally the —and many liti- The Board states waste. as a matter course

gants adopted have “Smallwooding” any and practice of upon them. reports

all served written granted by pre- court to

protection this pro- due a violation of fundamental

vent ran coun- a trial tactic which cess became Alaska, DEPARTMENT OF STATE policy of fundamental ter to court's SAFETY, and Tom PUBLIC expeditious inexpensive and “providing Schwantes, Petitioners, compensa- claims for resolution of tion....” BROWN, Respondent. Robert knowledge “right that the Armed with absolute,” liti- many cross-examine No. S-2829. opportunity to gants generally took the Supreme Court of Alaska. as a matter tactics. right, assert the instances, many where closer evalua- June 1990. of discretion would have use tion proceed expeditiously the case to allowed alternate to absolute cross-exam-

with an became,

ination, not a matter Smallwood pro- process, invitation for

of due but maneuvering and matter

cedural strategy. Although both

trial tac- employer have used Smallwood

tically, the Board observed system

jured worker, whom the ex- Decision, p. recognized in this case. Board *2 state,

Brown filed suit among others, court. Brown al- leged that the state was liable to him under Act, the Jones 46 U.S.C.App. for § negligence of the master of the VIGI- LANT, admiralty and under the doctrines unseaworthiness, maintenance, and cure. The state moved for summary judgment on grounds immunity and the of the Workers’ Act, AS 23.30.055. The trial court denied the granted motion. We petition state’s for review.

II. DISCUSSION The trial court summarized its reasons in an order denying the state’s motion for reconsideration as follows: statehood,

After the tort claims act passed. expanded was It the waiver of sovereign immunity to cover all claims, specifically mentioning admiralty. limiting language No referring to the Eastaugh, Wiles, Robert L. Delaney, compensation workers’ statute was Brubaker, Inc., Hayes, Reitman & Anchor- cluded in the tort claims act. age, petitioners. view, thus, It is this court’s that once passed, the tort claims act was there was Webb, Anchorage,

Ron J. and Eric Dick- no intention to retain sovereign immunity man, Associates, Seattle, David S. Teske & negligence vis-a-vis Wash., respondent. state. The workers’ law is MATTHEWS, C.J.,

Before simply regard- construed as a limitation WITZ, COMPTON, RABINO BURKE and ing all employee-employer It relations. JJ. nothing limiting to do with the waiv- sovereign immunity.

er of In the case of law, admiralty workers’ OPINION principles superseded by are federal law MATTHEWS, Chief Justice. employees, for all state workers consti- tuting exception. no I. FACTUAL AND PROCEDURAL expressed The same rationale was in an BACKGROUND opinion Attorney issued former General employed Robert Brown was by the Hayes years ago. more than 25 1963 For- State of Alaska as First Mate on the Alas- Op. Att’y mal addressing Gen. 28. In Department ka Safety patrol of Public ves- question employed of whether workers VIGILANT, sel a 100-foot sea-going ves- the state on state ferries could sue the sel. On June while the VIGI- Act, state under the opinion stat- patrol Bay, LANT was on in Bristol Brown ed: injured fishing was as he boarded a vessel only question remaining [T]he inspect suspected it for a violation of whether the State of Alaska has waived state fisheries laws. has, sovereign immunity. If it accepting After compensa- not, first supreme; Jones Act is if it has tion benefits under the Alaska Workers’ State cannot be sued under the Jones Act Act, 23.30.005-.270, only remedy and the available to State

HO on state law. State is the workmen’s com- well those based n. 9 P.2d 1290-1291 and Stanley, act.

pensation 1973). Subject explicit to certain quoted the opinion at 11. next exceptions, the intent of this statute was Act, AS Against the State 09.50.- Claims *3 equal footing on an with put the state 250, and continued: in who are sued private persons or entities it By immunity must be this waiver Abbott, tort. State See may sued for that the State be concluded (Alaska 1972). negligent which arise under the torts under the Act. It is true that Act, Compensation The Workers’ Act, Compensation Workmen’s Alaska ex- to the same the state (AS including 23.- the State employers, provides part in private employers, as tent 30.265), admiralty from lia- are excluded liability of an that [under “[t]he bility. is exclu- the Workers’ Act] liability place all of the opinion quoted and in other at 12. The sive Id. 23.30.055, employer anyone otherwise entitled remedy provision AS ... and exclusive damages at or in admi- stated: recover ... law injury or ralty on account of the death.” However, liability provi- this exclusive provision This would bar AS 23.30.055. as a limitation on suits sion cannot act damages any by under state suit Brown under the Federal Mari- the State However, present brought case law. unqualifiedly the State has time law once maritime law. negligent under federal its waived protect private A state cannot torts.... remedy cannot by for maritime tort citizens from suit a his maritime rem deprive Brown of federal admiralty limiting the exclusive Federal Co., edy. England v. New Fish Barber III, delegated by jurisdiction as Article 1973), longshore P.2d 806 2, of the United States Constitu- Section barge injured while man was aboard immunity, the By waiving its tion. employer. Although he had by his owned position private party of a stands already benefits under the Alaska collected liability by its tort and cannot limit Act, that we held Workers’ in workmen’s com- general provision remedy provision of the act the exclusive pensation act. So much AS 23.30.055 seeking fur preclude him from did not employers in limits the as recovery against employer under his ther admiralty must be considered invalid maritime law for unseaworthiness.1 infringement jurisdiction. on the Federal in Similarly, Thibodaux v. Atlantic Rich to limit is the it desire State (5th Cir.1978), Co., 580 F.2d field tort to the workmen’s com- denied, 442 cert. act, may legislative pensation it do so (1979), court held that “an L.Ed.2d exception to the waiver enactment provision in a state work sovereign immunity section contained applied men’s law cannot be in AS 09.50.250. policy when it will conflict with maritime reasoning. agree We with this Id. at 13. rights substantive afforded and undermine explanation follows. Our maritime law.” Accord Purnell B.V., provides Shipping v. Norned 801 F.2d Statute 09.50.250 Alaska (3rd Cir.1986). Thibodaux, having a ... claim 156 person ... “[a] summary judgment in favor an action court reversed may bring the state and remanded the court.” of Atlantic Richfield against the plaintiffs pursue gen sovereign immunity case allow their This statute waives superi- eral the latter for as maritime claims the state to claims wrongful at sounding admiralty, as death. 580 F.2d 847-48. torts or court for recovery ject win feder- double offset should his in Barber that 1. We noted paid n. obser- permitted the amounts al maritime case. at 39. This be would not governs present be sub- vation also case. award would under the

m court noted it presented had been with The state also relies on three state cases: analogous question City Roberts v. Lyons v. Texas A & M University, 545 Plantation, (5th Cir.1977). 558 F.2d 750 S.W.2d 56 (Tex.Civ.App.1977); Gross v. Thibodaux, Roberts, 580 F.2d 846. In Washington Ferries, 59 Wash.2d the court held that the exclusive remedy (1961); 367 P.2d 600 State, Maloney v. provisions compen- of Florida’s workmen’s 3 N.Y.2d 165 N.Y.S.2d 144 N.E.2d sation a defense act were not to a Jones In these cases the Act claim. F.2d at 751. expressly waiver was conditioned on preserving the question. defense in The Thibodaux court found support in Lyons waiving involved an act Supreme Court’s decision in Pope & *4 immunity which, as integral part Talbot, Hawn, Inc. v. waiver, reserved to the state “all of the (1953). There, L.Ed. 143 98 the court privileges granted and immunities by the apply to refused state contributory negli- Compensation Workmen’s pri- Act ... to gence defense which would have barred persons vate corporations.” 545 recovery general for a maritime cause of S.W.2d at 58. In Maloney, waiving the act action. The “[wjhile court stated that sovereign immunity was pro- “careful to may states supplement sometimes that, vide in waiving immunity, the exclu- policies, may a state deprive not siveness of person any remedy substantial admiralty rights against impaired.” State is not as 144 controlling Congress defined acts of N.E.2d at sovereign 367. The by interpretative immunity decisions of waiver in 409-10, expressly Gross was Court.” Id. at conditioned 74 S.Ct. at 205 (footnote omitted). by a 30-day proviso. notice of claim To hold otherwise 367 contrast, By would P.2d at 605. uniformity undermine the of mari- waiver of immunity time law “which the contained in the Constitution Alaska Claims [Federal] placed Against has purview under national State Act is not to con- conditioned on trol in procedural preserving ‘its substantial as in question well defense here— ” features.’ Id. at remedy provision. S.Ct. at 205 exclusive These (quoting Johnson, Panama R.R. legislature Co. v. 264 cases teach that the could make 391, 393, U.S. remedy L.Ed. the exclusive applicable defense (1924)). precedents These compel the federal maritime by referring claims to the conclusion that the exclusive remedy provi- sovereign immunity defense waiver sions of the Alaska Workers’ However, contained in the Claims Act. Act deprive cannot Brown of his federal legislature has not chosen to do so. Jones Act claim the state. Merely because the remedy de- The state relies on Johansen v. United fense is not a condition of the waiver of the States, S.Ct. 96 L.Ed. sovereign immunity of the state does not (1952),in support argument of its Against mean that the Claims the State Act remedy the exclusive provision of the repealed remedy the exclusive defense. Workers’ applies. Jo- The fully applicable defense is to all claims injury hansen involved an to a seaman-fed- the state under state law. eral government who sued the However, the apply defense does not damages negligence under the Pub- remedies, and thus the decision of lic Vessels Act of 46 U.S.C. 781- §§ superior court is AFFIRMED. 799. The court held that this was Employees’ barred the Federal Compen- COMPTON, J., dissents. provided sation Act of a work- MOORE, J., participating. not ers’ remedy to federal em- COMPTON, Justice, dissenting. ployees. Id. at 857. The presented Johansen case a conflict be- I. tween two federal remedies. It is thus problem Assuming unlike the state-federal which is the court’s conclusion is cor- present rect, here. employed state maritime workers super- employed purport ment did not recover more than state stand compensation lia- sede worker’s the same who suffer

land-based workers state; bility for the the exclusive accident. injury virtually in a identical provision was retained. employed wrong, the court is less stand to recover maritime workers Upon statehood, the exclusive counterparts. privately employed than their reenacted, limiting of AWCA was result, inequities are either under admiralty.” “at law or in AS 23.30.- However, methods traditional inevitable. Thus, despite gen- existence of statutory analysis lead to the conclusion persons in third to make “claims” right eral immunity retained as was court, the state Act suits. Jones seemingly reaffirmed legislature state’s limited waiver bars The doctrine re- employer. CATSA was damages by injured acting as an Act suits for something present form in near its court, fined to absent employees 1962. AS 09.50.250. Washington immunity. Gross waiver of Ferries, 59 Wash.2d of AWCA or Without the enactment *5 State, 600, (1961); 3 N.Y.2d Maloney v. 602 CATSA, or injured territorial an 364, 465, 365 356, 144 N.E.2d 165 N.Y.S.2d no claim at all have had worker would Univ., M 545 (1957); v. A & Lyons Texas state, or with the territory even 56, (Tex.Civ.App.1977).1 58 S.W.2d territory or of the Act. The aid Jones from suit. Ex (CAT- Act have been immune Against the State would Claims 1, SA), 09.50.250, per- New York No. 256 U.S. provides that Parte AS “[a] 590, 588, (1921); 65 L.Ed. 1057 claim having a ... son ... cf Dep’t Highways & Pub. against the state v. Texas may bring an action Welch of 468, 472-73, 107 U.S. S.Ct. Transp., Act claims 483 superior court.” Jones 2941, 2945-46, (1987). The State, 97 L.Ed.2d 389 v. 823 sound tort. See Collins (CATSA Cir.1987) original have 329, (9th AWCA must therefore been does F.2d 332 immunity; of oth- from Jones limited waiver Alaska’s not waive territory court). employee of the would The Alaska erwise an in federal Act suit (AWCA), any compensation on not have been entitled Compensation Act Workers occurring territory injury for an hand, “liability from the provides that the the other prevail, job. in order to while on the this act] [within gener- Brown needs to show that more place all other and in sovereign immunity in CATSA admiralty....” or in al waiver of at law employer ... abrogate the ef- was somehow intended to defined includes state. “Employer” as 23.30.265(13). fect of the more limited waiver sover- language be Should AWCA, eign immunity despite AWCA plain meaning, Brown would be given its being intact. he left to the worker’s entitled more. has received and no Despite lengthy discussion of federal law, given relevant provision of case none which is The exclusive state, 1949, provided employer here is the AWCA, beginning simple. really rather territory court’s rationale is remedy against prior nar- existing upon seizes our cases claims “now The court employer in lieu of rowly construing retentions 43-3-10 at common law otherwise.” § employ- state is not an (1949); when the 43-3-38 ACLA ACLA § State, broad, er, P.2d v. 705 general e.g., en- Freeman followed This was 1985), into (Alaska them persons 920 transforms providing relief to with actment territory. establishing requirement that retentions “any claim” sovereign immunity necessarily be must (Supp.1957). This enact- of 56-7-1 ACLA § Act noting Jones relief. that the court is unable It is worth 1. single affording injured state cite state case

H3 explicit, that because and then concludes he has received. England Barber v. New sovereign immunity was not re- Co., Fish 510 P.2d 812-13 & n. 39 itself, tained in it was not retained CATSA (Alaska 1973). issue; at all.2 This is not the rather the

question should whether be CATSA was II. the effect repeal intended to of AWCA. course,

Repeal by implication foregoing, away not favored. assumes Pe- State, 531 P.2d question ter v. 1267 the bothersome of whether the 1975). specific statutory provision ordi- apply Jones Act was ever intended at all narily repealed by enacted, is not a later employers. justice to states as One general statutory provision. Preston v. Supreme United States opined Court has Heckler, (9th Cir.1984); 734 F.2d Welch, that it was not. at Hawkins, United States v. 228 F.2d (Scalia, J., concurring). S.Ct. at 2957 (9th Cir.1955). Repeal by implication is The court in open question. left Welch only necessary limited and found when Id. at 107 S.Ct. at 2947. carry legislature’s out the intent. Warren The rationale for Justice Scalia’s concur- Thomas, (Alaska 1977). appears majority rence from the derive CATSA, legislature, enacting Did the opinion in Michigan Dep’t Will v. intend to the state to Police, -, employees, its own notwithstand- (1989). Will, L.Ed.2d 45 the Court held ing AWCA? Did it intend to allow its persons that states are not within the preferential maritime workers to receive meaning Will, U.S.C. § treatment over its land-based workers? Will, Court, while *6 question legisla- Had the occurred to the noting that the case did not involve the time, arguably tors at the a clause underlying Eleventh Amendment since the referencing maintaining AWCA and its in- court, id., suit was in state none- sole, tegrity comprehensive remedy as the opined theless that similar federalism con- injured state maritime workers could implicated Congress cerns were sub- have been included. jected to which it would not this, however, saying reject I any im- Accordingly, otherwise be to. plication legislature is somehow Congress pre- Court held that if intends to prevented by amending “federalism” from empt sovereign immunity by subject- CATSA to make clear that the sole ing remedy, state to a it must injured of its is work- “unmistakably make its intention to do so compensation, er’s and that Brown is enti- language clear in the of the statute.” dip.” tled to a “double The mere fact traditionally “In 2308-09. sensitive ar- the Jones Act exists as a federal cause of eas, legislation affecting such as the feder- action does not mean that state balance, requirement al of clear state- asserted, immunity, properly abrogated. is legislature ment assures that Scanlon, Hospital See Atascadero State faced, issue, bring fact and intended to into 234, 242, 3142, 3147, 473 U.S. 105 S.Ct. judicial the critical matters involved in the (1985). Moreover, L.Ed.2d 171 the Jones Id., quoting decision.” United States v. abrogate properly Act has been held not to Bass, 515, 523, 404 U.S. 92 S.Ct. sovereign immunity. asserted Welch (1971). 30 L.Ed.2d 488 Dep’t Highways v. Texas & Pub. straightforward application 468, 475-76, Transp., Will 2941, 2946-47, the facts us leads before conclusion Any 97 L.Ed.2d 389 recovery by simply inapplicable that the Jones Act Brown must be off- held, already set benefits the states. The Court has correct that retentions retain im- the court is of sover- CATSAdoes not munity eign immunity explicit, must be then the Nor could Collins be court’s as to state claims. correctly that AWCAis still an if CATSAis as broad a waiver assertion effective defense decided wrong, against state law claims must be since as the court maintains. 1X4 though analogous different context Amendment, that the Jones

the Eleventh sufficiently unambig-

Act is clear not 475-76, Welch, 483 U.S. at

uous.

at 2946-47. under traditional modes of either

statutory analysis applied AWCA

CATSA, under the Court’s method Will statutes, interpreting Brown

limited his workers’ reme- Accordingly, I

dy. dissent. Alaska, Petitioner, v.

STATE of KENDALL, Respondent.

George

No. A-3003. Appeals of Alaska.

Court Atty., McLaughlin, Dist. Michael S. Asst. June McConnell, Atty., Dwayne W. Dist. Anchor- Gen., Douglas Baily, Atty. B. Ju- age, and neau, petitioner. *7 Advocate, Hiebert, A. Asst.

Leslie Public Advocate, McGee, An- and Brant Public chorage, respondent. for OPINION C.J., BRYNER, and COATS Before SINGLETON, JJ. COATS, Judge. grand jury

On December George Kendall misconduct indicted volving a substance in the third controlled cocaine, possession a class B degree, 11.71.030(a)(1). felony. AS In March filed a to suppress Kendall motion evidence search conducted a warrantless police resulted on October Following discovery of the cocaine. evidentiary hearing, Superior Court granted Kendall’s motion Judge Joan Katz suppressed the evidence. petition review in this court. filed a