After Acquiring an Audience: a Brief Reply to the June 2001 Critique Regarding After-acquired Evidence

• Jurisdiction: Alaska,United States
• Publication year: 2001
• Citation: Vol. 18

§ 18 Alaska L. Rev. 287. AFTER ACQUIRING AN AUDIENCE: A BRIEF REPLY TO THE JUNE 2001 CRITIQUE REGARDING AFTER-ACQUIRED EVIDENCE

Alaska Law Review
Volume 18
Cited: 18 Alaska L. Rev. 287

AFTER ACQUIRING AN AUDIENCE: A BRIEF REPLY TO THE JUNE 2001 CRITIQUE REGARDING AFTER-ACQUIRED EVIDENCE

GREGORY S. FISHER ^[*]

FOOTNOTES

This Reply briefly answers a critique by Terry A. Venneberg of the author's previous article addressing the use of after-acquired evidence in employment cases in Alaska.

I was gratified to read the June 2001 critique ^[1] of my article analyzing the use of after-acquired evidence in employment cases in Alaska, ^[2] if only to confirm that someone, somewhere, actually read my article (other than my mother). I was perhaps more pleased that my analysis inspired others to publish. Good academic dialogue inspires, perhaps provokes, responses to which re- [*pg 288] plies are customarily granted. The editors of the Alaska Law Review have graciously permitted me this brief Reply to respond to the critique's analysis of after-acquired evidence.

The critique asserts that my analysis is inconsistent with Alaska law ^[3] without offering any support for this surprising contention. The critique implies that the principles set out in Brogdon v. City of Klawock ^[4] and McKennon v. Nashville Banner Publishing Co. ^[5] answer all outstanding questions regarding the use of after-acquired evidence and that these cases "reflect the current state of the law in Alaska," ^[6] thereby leaving the reader with the impression that all relevant issues have been resolved. The critique announces that it will offer an approach to the use of after-acquired evidence in Alaska that negates the perceived deficiencies in my analysis. ^[7] Unfortunately, the critique never supports its central thesis and fails to explain how my analysis is inconsistent with Alaska law or how the critique's recommendations represent an improvement.

Contrary to the critique's suggestion, the Alaska Supreme Court has not decided what effect, if any, after-acquired evidence will have in employment litigation. With regard to the use of after-acquired evidence, two questions are of primary importance: (1) what burden of proof should be placed on employers to establish the existence of after-acquired evidence; and (2) once established, what effect should after-acquired evidence have? That is, should after-acquired evidence bar suit or merely limit available remedies? ^[8] There is no current state of the law in Alaska with respect to these issues. In Brogdon v. City of Klawock, the court offered tentative thoughts in dicta indicating how it might, or might not, resolve these issues. ^[9] The Brogdon court suggested that it "might be appropriate to fashion a rule that no post-termination justification should serve to limit damages unless it is one which all reasonable employers would regard as mandating termination and which is, as a matter of law, just cause for termination." ^[10] The court also opined that it might be appropriate to impose a heightened burden of proof upon employers seeking to rely on after-acquired evidence. ^[11] Since then, the court has not revisited any issue related to [*pg 289] after-acquired evidence. Thus, the critique inaccurately implies that all relevant issues have been resolved by Brogdon.

Identifying Brogdon as reflecting the current state of the law in Alaska seems somewhat puzzling insofar as the supreme court essentially acknowledged that its comments were dicta. ^[12] Of course, dicta may possess predictive value, and thus may foreshadow precedent. ^[13] There is no reason, however, to accept dicta uncritically where -- as I would argue with respect to the Brogdon court's analysis -- it arises in a factual and legal vacuum and conflicts with the developing weight of authority. The Brogdon court's dicta arose in such a vacuum because the only issue confronted by the court was whether after-acquired evidence could be relied upon if it was evidence that would have been discovered had the termination not occurred. ^[14] The court was never asked to consider what burden of proof should apply or what effect after-acquired evidence should have once introduced. The trial court ruled that after-acquired evidence could not be relied upon unless it was evidence that would have been discovered had the termination not occurred, ^[15] and the supreme court reversed. No other issues pertaining to after-acquired evidence were properly before the court. Indeed, the court emphasized that "the question whether a new cause for termination merely serves to limit damages or eliminates entirely the right to damages is not presented." ^[16] The court additionally stressed that "[w]e rule at this time only that the limitation imposed by the trial court that evidence in support of new reasons for termination must be such as would have been discovered had termination not taken place was erroneous." ^[17] To read Brogdon as holding anything beyond the issue it confronted would be contrary to settled principles governing stare decisis and precedent. ^[18]

[*pg 290]

The Brogdon court's dicta conflict with the developing weight of authority because, as discussed in greater detail in my article, a growing majority of courts now hold that after-acquired evidence bars suit in common law actions ^[19] and may be established by a preponderance of evidence (not a heightened burden of proof). ^[20] Indeed, what I characterize as a growing majority has been described as an overwhelming majority, at least to the extent that after-acquired evidence operates to bar claims. ^[21]

Perhaps the most unsettling aspect of the Brogdon court's dicta is the extent to which it can be read to intrude upon private contractual relationships. By stating that after-acquired evidence should be limited to situations where "all reasonable employers would regard [the employee's misconduct] as mandating termination and which is, as a matter of law, just cause for termination," ^[22] the court suggested a rule that undermines the right of private employers and employees to define the terms and conditions of employment relationships. The full theoretical import of this rule has not been analyzed, but one wonders why it would not impair contractual obligations, ^[23] or operate to take property rights associated with contract powers vested in private parties. ^[24] Leaving these issues aside, it seems questionable to establish a rule increasing court supervision of employment matters in derogation of the courts' general reluctance to intrude upon employers' management discretion. ^[25] In light of these considerations, the Brogdon court's dicta should carry little persuasive weight. The critique's reliance on Brogdon is, I...