Alaska

quick facts

Although Alaska courts have never recognized a private state constitutional right of action, they have indicated that they would do so under certain narrow circumstances. The Alaska Supreme Court has declined to recognize an implied right of action for violations of the state constitution’s due process provision, explaining: “We are also hesitant to extend the Bivens decision, and will not allow a claim for damages except in cases of flagrant constitutional violations where little or no alternative remedies are available.” ¹

Alaska waives its sovereign immunity for contract and tort claims, but carves out several exceptions, including exceptions for intentional torts, discretionary functions, and employees exercising “due care in the execution of a statute or regulation.” ² Alaska’s discretionary-function immunity has been interpreted more narrowly than the analogous discretionary-function immunity extended in the Federal Tort Claims Act. ³ The Supreme Court of Alaska has explained that planning functions involving “the formulation of basic policy” enjoy discretionary immunity, but operational functions do not. ⁴ State employees can be personally liable only for “acting, or failing to act, with wilful, reckless, or intentional misconduct, or with gross negligence or malice.” ⁵

Alaska allows tort claims against municipalities, including intentional tort claims under a theory of respondeat superior. ⁶ This broad waiver of immunity includes several exceptions. For instance, municipalities are immune from liability for discretionary functions, and firefighters are immune from liability “based upon the act or omission of the employee or member of the fire department in the execution of a function for which the department is established.” ⁷ Other municipal employees enjoy the same immunities as municipalities, including discretionary-function immunity. ⁸ Notably, the discretionary-function immunity extended to municipal employees has been interpreted more broadly than the discretionary-function immunity extended to municipalities. ⁹