# Thoma v. Hickel

> Alaska Supreme Court · August 15, 1997 · 947 P.2d 816

URL: https://www.frixlaw.com/law-library/cases/9558380

## Case

- **Full name:** Theodore P. THOMA, Appellant, v. Walter J. HICKEL, Appellee
- **Court:** Alaska Supreme Court
- **Decided:** August 15, 1997
- **Citations:** 947 P.2d 816; 1997 Alas. LEXIS 121; 1997 WL 468070
- **Precedential status:** Published
- **Opinion:** Dissent by Eastaugh
- **Judges:** Matthews, Eastaugh, Carpeneti, Compton
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9558380

## How later opinions describe it (automated extraction)

- concluding that the First Amendment protects an official’s right to speak truthfully in response to criticism even if the official’s speech is retaliatory and stating, “We do not believe that imposing section 1983 liability on a public official who responds in kind to protecte…

## Opinion text

EASTAUGH, Justice,
dissenting in part.
The court holds in Part III.A that Thoma has asserted a valid tort claim for the alleged violation of state regulations 13 AAC 25.260 and .280. Op. at 822-824. I dissent from that holding and from Part IV (“CONCLUSION”) to the extent it reverses and remands for consideration of that claim.
It is problematic whether Thoma’s complaint pled a state regulations tort claim, but assuming Thoma preserved that claim in the superior court, he nonetheless explicitly waived it during briefing in this court. Hick-el’s appellee’s brief noted that Thoma seemed to suggest Hickel could be liable in tort for violating state regulations independent of any constitutional violation. Hickel then urged this court to decline to consider any such argument because Thoma’s complaint did not assert an independent state regulation tort claim. In response, Thoma argued in his reply brief:
Thoma is not asserting a cause of action for violation of the regulations; he cites state regulations to show that his right to have APSIN used only for law enforcement purposes was clearly established. The cause of action is brought directly under the Alaskan Constitution, which was plead in the complaint.
Thoma has thus explicitly disavowed any independent cause of action for violation of 13 AAC 25.260 or .280. He does not argue that, should his constitutional claim be dismissed, his “subsumed” state regulation claim should survive. For whatever reason, Thoma has chosen to rely on the state regulations only in context of his constitutional claim. That is his permissible choice, and we should not force on him a claim he has chosen to disavow. See Burcina v. City of Ketchikan, 902 P.2d 817, 823 (Alaska 1995) (holding that an issue is not properly before the court where the issue is not properly raised or briefed, and the only-reference to the issue appears in an opposition memorandum). I consequently would not reverse and remand for consideration of the state regulations “claim.”
I agree with the remainder of the court’s opinion, including its rejection of Thoma’s state constitutional claim. I agree that Tho-ma could have, had he wished to do so, pursued a noneonstitutional claim based on violations of the state regulations. It is the availability of a potential state regulations claim that renders a state constitutional remedy superfluous. Thoma’s voluntary disavowal of any state regulations claim does not allow him to pursue the superfluous constitutional claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9558380. Public record. Not legal advice.