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, e-mail 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

GREGG CONITZ, 

Appellant, 

v. 

ALASKA STATE COMMISSION 

FOR HUMAN RIGHTS, and TECK 

ALASKA INCORPORATED, 

Appellees. 

) 

) Supreme Court No. S-14357 

Superior Court No. 3AN-09-10085 CI 

O P I N I O N 

No. 6871 - March 7, 2014 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Philip R. Volland, Judge. 

Appearances: Kenneth L. Covell, Law Offices of Kenneth L. 

Covell, Fairbanks, for Appellant. William E. Milks, Assistant 

Attorney General, Juneau, and Michael C. Geraghty, 

Attorney General, Juneau, for Appellee Alaska State 

Commission for Human Rights. Sean Halloran, Littler 

Mendelson, P.C., Anchorage, for Appellee Teck Alaska 

Incorporated. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

The Alaska State Commission for Human Rights dismissed Gregg Conitz’s 

complaint against his employer, Teck Alaska Incorporated, alleging discrimination in its 
 

 

 

 

 

 

 

 

 

promotion decisions. The superior court dismissed Conitz’s appeal as moot, finding that 

the same claims had already been decided by a federal court and that the doctrine of res 

judicata would therefore preclude further pursuit of the claims if they were remanded to 

the Commission. Conitz appeals. We affirm the superior court’s decision. 

II. FACTS AND PROCEEDINGS 

Over the last seven years, Gregg Conitz has filed a number of claims 

against his employer, Teck Alaska Incorporated (Teck), alleging violations of state and 

federal civil rights statutes. Teck operates the Red Dog Mine in what it characterizes as 

a joint venture with NANA Regional Corporation. Teck has a hiring preference for 

NANA shareholders under which “[f]irst preference for all Red Dog jobs would go to 

qualified NANA shareholders.”1 Conitz, who describes himself as white and as a 

minority in the Northwest Arctic Borough (which is geographically coextensive with the 

NANA Region), contends that Teck’s preference for NANA shareholders is racially 

discriminatory and that it has cost him several opportunities for promotion to supervisory 

positions at the Red Dog Mine. 

In 2006, Conitz filed complaints with both the Alaska State Commission 

for Human Rights (the Commission) and the federal Equal Employment Opportunity 

Commission (EEOC) based on Teck’s failure to promote him in 2004 and 2005 to 

positions as mine operations supervisor and mine trainer, respectively. After the EEOC 

declined to act on Conitz’s claims, he brought suit against Teck on those claims in 

1 The parties dispute the scope of the preference, but Conitz also asserts that 

the extent of it “is immaterial to the question of law of whether any shareholder 

preference at the Teck mine is illegal.” We agree that the exact parameters of Teck’s 

shareholder preference are immaterial to our decision and therefore do not describe it 

fully here. 

-2- 6871
 
 

 

 

 

 

 

 

 

 

 

 

federal district court. The federal district court dismissed Conitz’s suit, ruling that he had 

failed to demonstrate he was qualified for the positions he sought and that Teck’s 

shareholder preference was “not prohibited by law because it is based on the permissible 

distinction of shareholder status rather than race.” 2 The Court of Appeals for the Ninth 

Circuit affirmed, though it limited its holding to Conitz’s failure to show he was qualified 

for the jobs he sought; it did not discuss the legality of Teck’s hiring preference.3 

Between the time of the federal district court’s decision and the Ninth 

Circuit’s affirmance, Conitz filed new complaints with the EEOC and the Commission 

alleging new civil rights violations. In these complaints, Conitz alleged that Teck had 

twice more failed to promote him to the position of mine operations supervisor, once in 

November 2007 and again in July 2008, because of its unlawful shareholder preference. 

The EEOC dismissed Conitz’s complaint on grounds that it was “unable to conclude that 

the information obtained establishes violations of the statutes,” and Conitz again brought 

suit on his claims in federal district court. 

While this second federal suit was pending, the Commission staff issued its 

own determination of Conitz’s second administrative complaint. The Commission found 

that Conitz’s claim based on alleged discrimination in 2007 was untimely and therefore 

4 “not jurisdictional for the Commission”; and it concluded that his claim arising in 2008

2 Conitz v. Teck Cominco Alaska Inc., No. 4:06-cv-0015-RRB, slip op. at 4 

(D. Alaska July 21, 2008). 

3 Conitz v. Teck Alaska Inc., 331 F. App’x 512, 513 (9th Cir. 2009). 

4 The Commission’s governing regulations provide that “[a] complaint 

alleging a discriminatory act or practice not of a continuing nature must be filed no later 

than . . . 180 days after the alleged discriminatory act or practice occurred.” 6 Alaska 

(continued...) 

-3- 6871
 
 

 

 

 

 

 

was unsupported by substantial evidence, relying on testimony that the employee 

selected over Conitz for the position at issue was “not only a better equipment operator 

than complainant, but . . . , in the foreman’s opinion, had a better safety record, better 

leadership skills, broader experience, and a better attitude than complainant.” The 

Commission’s investigations director approved this determination and dismissed 

Conitz’s case by order dated August 20, 2009. 

Conitz appealed this order to the state superior court. While the appeal was 

pending, the federal district court ruled on Conitz’s second federal suit.5 It relied on the 

doctrine of res judicata to decide that Conitz was precluded from litigating the 2007 

failure to promote, reasoning that he could have pursued the claim in his first federal suit, 

which did not proceed to final judgment until July 2008.6 By separate order the court 

rejected Conitz’s claim based on the 2008 failure to promote, which was too recent to 

have been brought in the earlier suit; the court ruled that Conitz was not qualified for the 

position he sought and that Teck’s shareholder preference was not unlawfully 

discriminatory.7 On appeal the Ninth Circuit affirmed the lower court’s decision that 

Conitz was not qualified for the position he sought but again declined to reach the 

4 (...continued) 

Administrative Code (AAC) 30.230(b)(2) (2013). 

5 Conitz v. Teck Alaska Inc., No. 4:09-cv-0020-RRB, slip op. at 12 (D. 

Alaska Nov. 4, 2009). 

6 Id. at 6-7. 

7 Conitz v. Teck Alaska Inc., No. 4:09-cv-0020-RRB, slip op. at 13 (D. 

Alaska Jan. 20, 2010). 

-4- 6871
 
 

 

 

 

legality of Teck’s shareholder preference, on grounds that “Conitz has failed to 

demonstrate how the policy might have affected him.”8 

Before the Ninth Circuit issued this ruling, the state superior court decided 

Conitz’s administrative appeal from the Commission’s determination to dismiss his 

claims. In a written decision, the court dismissed Conitz’s appeal as moot, reasoning that 

all of his claims had been decided on their merits in his two federal suits, and thus even 

if the superior court reversed the Commission’s determination and remanded the case, 

the doctrine of res judicata would prevent the Commission from prosecuting Conitz’s 

claims to any different resolution. 

Following some procedural difficulties, further described in section IV.A 

below, Conitz filed an appeal to this court. The Commission moved to dismiss the 

appeal on timeliness grounds, and Teck joined in the motion. We declined to dismiss the 

appeal on the Commission’s motion but did order the parties to “include as a point on 

appeal whether the appeal was timely filed.”9 Conitz accordingly amended his points on 

appeal. 

Conitz’s primary argument on appeal is that the superior court erred in 

applying the doctrine of res judicata to dismiss his case. He also asks us to rule that 

Teck’s shareholder preference is racially discriminatory. He further argues that the 

Commission should not have closed his file without holding an adversarial hearing. 

III. STANDARD OF REVIEW 

8 Conitz v. Teck Alaska Inc., 433 F. App’x 580, 581 (9th Cir. 2011). 

9 Alaska Supreme Court Order No. S-14357 (Oct. 11, 2011). 

-5­ 6871 
 

 

 

 

 

 

 

 

“We independently review the merits of administrative decisions.”10 “We 

review an agency’s factual findings to determine whether they are supported by 

substantial evidence.”11 “We review questions of law not involving agency expertise 

under the substitution of judgment test.”12 Whether res judicata applies is one such 

question of law, reviewed de novo.13 

IV.	 DISCUSSION 

A.	 Conitz’s Appeal Was Untimely, But We Relax The Rules To Decide It 

On Its Merits. 

We agree with Teck and the Commission that Conitz’s appeal to this court 

was untimely.14 The superior court’s decision was distributed on February 17, 2011, and 

10 Villaflores v. Alaska State Comm’n for Human Rights, 170 P.3d 663, 665 

(Alaska 2007) (citing Raad v. Alaska State Comm’n for Human Rights, 86 P.3d 899, 903 

(Alaska 2004)). 

11	 Id. (quoting Raad, 86 P.3d at 903) (internal quotation marks omitted). 

12	 Id. (quoting Raad, 86 P.3d at 903-04) (internal quotation marks omitted). 

13 Weber v. State, 166 P.3d 899, 901 (Alaska 2007) (citing Alaska Wildlife 

Alliance v. State, 74 P.3d 201, 205 (Alaska 2003)). 

14 The appellees also argue that Conitz waived his right to respond to their 

timeliness argument because he did not address the issue in his opening brief. Our order 

requiring Conitz to include the issue in his points on appeal was somewhat anomalous 

as a procedural matter, given that the lack of timeliness was not his issue but rather the 

appellees’ argument for dismissal. But as the appellees’ argument, it was their obligation 

to brief it or risk waiving it. Conitz could have anticipated the timeliness challenge in 

his opening brief, but he did not waive his right to respond by failing to address it 

preemptively. We note that Conitz’s arguments on the timeliness issue were identical 

to those he raised in opposition to the motion to dismiss, and the appellees were not 

prejudiced by having to brief the issue first. 

-6-	 6871
 
 

 

 

 

 

 

Conitz therefore had until March 21, 2011, to appeal to this court.15 He did not do so 

until June 20, nearly three months late. In the meantime he had filed a tardy motion for 

reconsideration of the superior court’s decision, had mistakenly filed a notice of appeal 

from that decision in the superior court rather than this court, and had shown some 

confusion as to whether the superior court’s decision was in fact a final judgment for 

purposes of appeal. On June 20, 2011, at the same time that he first filed a notice of 

appeal in this court, he filed a motion with the superior court requesting entry of final 

judgment.16 

Conitz appears to argue that his motion for reconsideration, which he filed 

in superior court on March 4, 2011, extended the time for filing an appeal. It did not. 

Though purportedly brought under Civil Rule 77(k), Conitz’s motion is properly 

considered as a motion for reconsideration under Appellate Rule 503(h), since Part Five 

of the Appellate Rules applies to motions for reconsideration when the superior court 

acts as an intermediate appellate court.17 But the motion was untimely under either 

15 See Alaska R. App. P. 204(a)(1). March 21, 2011, was actually 32 days 

from February 17, 2011. The thirtieth day was a Saturday. 

16 The superior court denied Conitz’s motion for entry of final judgment on 

August 4, 2011. Conitz then refiled his appeal in this court; his June 20 notice of appeal 

had been rejected by the clerk’s office for various deficiencies, including a failure to 

include a copy of the final order or judgment from which he was appealing. 

17 See Alvarez v. Ketchikan Gateway Borough, 28 P.3d 935, 942 (Alaska 

2001) (applying Appellate Rule 506 to time for rehearing “because the superior court 

acted as an intermediate appellate court by reviewing the Board’s decision”); Childs v. 

Tulin, 799 P.2d 1338, 1341 (Alaska 1990) (“Appellate Rule 506 controls rehearings by 

the superior court acting as an intermediate court of appeals.”). 

-7- 6871
 
 

 

 

 

 

 

 

 

rule.18 And in any event, a motion for reconsideration filed pursuant to Appellate Rule 

503(h) is not listed in Appellate Rule 204(a)(3) among the “timely motion[s] filed in the 

trial court” that terminate the running of the time for filing an appeal. 

We nevertheless entertain Conitz’s late-filed appeal. Appellate Rule 521 

allows us to relax the rules “where a strict adherence to them will work surprise or 

injustice.” When deciding whether to allow a late-filed appeal we must “balance the 

right to appellate review, the willfulness and extent of the rules violation, and the 

possible injustice that might result from dismissal.”19 We will excuse a late filing when 

it is the result of reasonable confusion about the state of the law and there is no prejudice 

to the opposing party.20 

We have excused late-filed appeals in the past where the appellant 

reasonably believed that a motion for reconsideration would terminate his time for 

18 See Alaska R. App. P. 503(h)(1) (“A motion for reconsideration must be 

filed within ten days after the date of notice of the order . . . .”); Alaska R. Civ. P. 77(k) 

(“A motion to reconsider the ruling must be made within ten days after the date of notice 

of the ruling . . . .”). The tenth weekday after the date of notice of the order, February 

17, 2011, was February 28, and Conitz filed his motion on March 4. Conitz appears to 

argue that the appellees have waived any objection to the timeliness of his motion for 

reconsideration by failing to object to it in the trial court. We found a similar argument 

to be without merit in Vogt v. Winbauer, and we reject it here as well. 376 P.2d 1007, 

1009 (Alaska 1962). 

19 Cook v. Aurora Motors, Inc., 503 P.2d 1046, 1049 (Alaska 1972) (internal 

footnotes omitted). 

20 See, e.g., McCarrey v. Comm’r of Natural Res., 526 P.2d 1353, 1354-55 

(Alaska 1974) (holding that plaintiff’s failure to bring timely appeal of administrative 

decision in superior court was forgiven where “a great deal of confusion existed 

concerning the method and procedures by which appeals from an administrative decision 

might be taken to the superior court”). 

-8- 6871
 
 

 

 

 

 

 

 

 

 

appeal21 and where the appellant was reasonably confused about whether the superior 

court’s order was an appealable final judgment.22 Conitz’s counsel made both these 

errors. But before today we had never expressly held that motions for reconsideration 

filed in the superior court under Appellate Rule 503(h), unlike motions for 

reconsideration filed under Civil Rule 77(k), do not terminate an appellant’s time to file 

a further appeal (though the language of the rule is arguably explicit enough). Further, 

when Conitz’s time to appeal expired we had not yet explicitly stated that a separate final 

judgment is not required before a party may appeal a superior court’s appellate decision. 

We resolved this issue three months later in Griswold v. City of Homer, but in doing so 

we stated that we were clarifying an otherwise confusing area of the law.23 

Finally, the appellees do not allege that they were prejudiced by the delay 

caused by Conitz’s procedural errors. Conitz served all of his erroneous filings on the 

appellees, and there is no question but that they were on notice of his intent to appeal the 

superior court’s decision. When the clerk of the superior court informed Conitz that no 

separate judgment would be forthcoming absent a motion requesting one, Conitz 

21 Anderson v. State, Commercial Fisheries Entry Comm’n, 654 P.2d 1320, 

1320-22 (Alaska 1982) (late-filed appeal accepted because appellant’s incorrect belief 

that motion for reconsideration terminated time to appeal was “far from untenable”). 

22 Mattfield v. Mattfield, 133 P.3d 667, 674 n.7 (Alaska 2006) (late-filed 

appeal accepted “given the brief period of delay, the general confusion surrounding the 

proceedings on reconsideration, the uncertainty that might have arisen because the order 

. . . was not expressly identified as a final judgment, and the lack of any discernible 

prejudice”). 

23 252 P.3d 1020, 1027 (Alaska 2011) (“We . . . clarify that where the superior 

court acts as an intermediate appellate court, under Appellate Rule 507(a) its opinion or 

decision on appeal is the ‘judgment’ to which Appellate Rule 204(a)(1) refers” for 

purposes of commencing the time for appeal.). 

-9- 6871
 
 

 

 

 

 

 

 

 

 

 

immediately filed both a motion requesting a final judgment in the superior court and a 

notice of appeal in this court. Given the element of confusion in the law, the various 

efforts, albeit faulty, of Conitz’s counsel to preserve his client’s appellate rights, and the 

lack of prejudice to the appellees, we exercise our discretion under Appellate Rule 521 

to relax the rules and hear Conitz’s appeal on its merits.24 

B.	 Conitz’s Appeal Is Moot Because Further Pursuit Of His Claims On 

Remand Would Be Barred By Res Judicata. 

The superior court dismissed Conitz’s appeal as moot, finding that the 

decisions in the federal cases barred him from litigating his claims any further. The 

doctrine of res judicata precludes a party from relitigating “a cause of action that has 

already been litigated and decided.”25 The elements necessary to the doctrine’s 

application are “(1) a final judgment on the merits, (2) from a court of competent 

jurisdiction, (3) in a dispute between the same parties (or their privies) about the same 

cause of action.” 26 Conitz pursued claims in federal court alleging that Teck had 

discriminated against him in 2007 and 2008 by twice failing to promote him to mine 

24 The appellees argue that Conitz’s first improper attempt to appeal, when he 

filed a notice of appeal in the superior court in April 2011, demonstrated that he was not 

truly awaiting a final judgment from the superior court and that his further delay was 

willful. Conitz’s counsel later asserted in correspondence with the superior court clerk 

that he believed this initial appeal to have been premature. We resolve the issue in favor 

of deciding the appeal on its merits. 

25 Smith v. CSK Auto, Inc., 132 P.3d 818, 820-21 (Alaska 2006) (citing 

Alderman v. Iditarod Props., Inc., 104 P.3d 136, 141 (Alaska 2004)). 

26 Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith, 132 P.3d 

at 820); see also Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 44 (Alaska 

2007) (“[T]he principles of res judicata and collateral estoppel apply in administrative 

proceedings.”). 

-10-	 6871
 
 

 

 

 

 

 

 

operations supervisor, claims he also pursued before the Commission. The federal 

district court entered final judgment on the merits of these claims and the Ninth Circuit 

affirmed its judgment on appeal.27 The federal court was a court of competent 

jurisdiction.28 Thus the superior court was correct in deciding that Conitz’s claims, 

having once been decided against him, would be barred by res judicata in any subsequent 

proceeding.29 

A claim is moot if the party pursuing it would not be entitled to relief even 

if he prevails. 30 Had Conitz persuaded the superior court that the Commission erred in 

its determination of his claims, a remand to the Commission would have been pointless, 

as res judicata would have prevented the Commission from pursuing Contiz’s individual 

claims in an adjudicatory proceeding.31 The superior court correctly decided that 

27 Conitz v. Teck Cominco Alaska Inc., No. 4:09-cv-0020-RRB, slip op. at 13 

(D. Alaska Jan. 20, 2010); Conitz v. Teck Alaska Inc., 433 F. App’x 580, 581 (9th Cir. 

2011). See Patterson v. Infinity Ins. Co., 303 P.3d 483, 497 (Alaska 2013) (“A dismissal 

based on summary judgment constitutes a final judgment on the merits.”). 

28 See, e.g., Smith, 132 P.3d at 820 (“There is no question that the federal 

court is a court of competent jurisdiction.”). 

29 The doctrine of res judicata applies in administrative proceedings. See 

Robertson v. Am. Mech., Inc., 54 P.3d 777, 780 (Alaska 2002) (holding that employee’s 

amended claim before workers’ compensation board was barred by res judicata). 

30 Fairbanks Fire Fighters Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 

1165, 1167 (Alaska 2002) (citing Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)). 

31 We are not presented in this case with the issue of whether an adverse 

decision in an employee’s individual discrimination suit would have any res judicata 

effect on the Commission’s ability to pursue public-interest litigation against the same 

employer in the exercise of its broad statutory mandate to “eliminate and prevent 

(continued...) 

-11- 6871
 
 

 

 

 

 

 

 

 

 

Conitz’s appeal from the Commission’s determination of his claims was therefore moot. 

Conitz argues unconvincingly that the elements of res judicata are not met 

here. He contends first that there would be no identity of parties between his second 

federal suit and a proceeding before the Commission on remand. He necessarily 

concedes that he and Teck were the parties in his second federal suit,32 but he contends 

that there were different parties before the Commission, one of which is the Commission 

itself, “effectively [acting as] the judge and the prosecutor.” But the Commission 

identifies the parties to its proceedings as Conitz, “complainant,” and Teck, 

“respondent.” We have previously referred to the complainant in the Commission’s 

complaint process as “the real party in interest.”33 And even if Conitz were not a party 

himself to the Commission proceeding, we would still find that he was in privity with the 

Commission at least for purposes of its later pursuit of the claims, seeking individual 

relief, that he had already lost once. “Privity ‘is a shorthand way of expressing assurance 

that the non-party has had adequate notice and opportunity to be heard, and that its rights 

31 (...continued) 

discrimination in employment,” see AS 18.80.200(b). See, e.g., E.E.O.C. v. Jefferson 

Dental Clinics, PA, 478 F.3d 690, 696-99 (5th Cir. 2007) (holding that E.E.O.C. is not 

in privity with losing individual litigants when it seeks injunctive and other equitable 

relief in pursuit of its mandate to eliminate workplace discrimination but is in privity 

with those litigants for purposes of recovering “make-whole” or “victim-specific” relief 

for their benefit.) 

32 See Conitz v. Teck Alaska Inc., 433 F. App’x 580, 581 (9th Cir. 2011). 

33 Alaska State Comm’n for Human Rights v. Yellow Cab, 611 P.2d 487, 488 

(Alaska 1980). 

-12- 6871
 
 

 

 

 

 

and interests have been protected.’ ” 34 Alaska follows the Restatement rule that privity 

exists when a party to a suit represents a non-party.35 In its list of such representatives 

the Restatement includes “[a]n official or agency invested by law with authority to 

represent the person’s interests.” 36 Conitz admits that during the initial investigation of 

his claim, the Commission had “an alignment with Conitz and essentially [was] his 

representative” (though he asserts that on remand the Commission would be “aligned 

with Teck” now that it has decided against pursuing his claim). 

In Beegan v. State, Department of Transportation & Public Facilities, we 

held that a complainant could not be barred by res judicata from pursuing a claim that 

could have been, but was not, raised in an earlier Commission investigation because he 

lacked control over the Commission process.37 But the situation here is the reverse: 

whereas the complainant in Beegan lacked the “full and fair opportunity to litigate his 

claims” that res judicata requires of the first case to reach final judgment (because the 

first case was the Commission investigation which the complainant did not control),38 

here the first case to reach final judgment was the federal lawsuit, which Conitz did 

34 Stewart v. Elliott, 239 P.3d 1236, 1241 (Alaska 2010) (quoting Alaska 

Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989)). 

35 See id. (quoting Powers v. United Servs. Auto. Ass’n, 6 P.3d 294, 298 

(Alaska 2000); RESTATEMENT (SECOND) OF JUDGMENTS § 41(1)(d) (1982)). 

36 RESTATEMENT (SECOND) OF JUDGMENTS § 41 cmt. d. 

37 195 P.3d 134, 139 (Alaska 2008). 

38 Id. (quoting Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1253 (Alaska 2001) 

(internal quotation marks omitted). 

-13- 6871
 
 

 

 

 

 

 

 

control and in which he clearly had a “full and fair opportunity to litigate his claims.” 

A litigant is entitled to one such “full and fair opportunity,” not two.39 

Conitz also argues that the application of res judicata here is foreclosed by 

comment o to the Restatement (Second) of Judgments § 27.40 But this section of the 

Restatement describes issue preclusion, not claim preclusion (res judicata).41 The 

comment discusses how to decide if a trial court’s determination of an actually litigated 

issue is conclusive after an appeal;42 but it is not a requirement of res judicata that an 

issue was actually litigated, only that there was an opportunity to litigate it.43 The same 

analysis disposes of Conitz’s added claim that there was no identity of issues between 

the federal lawsuits and the Commission proceedings because the federal court did not 

decide his state law claims. This is incorrect — Conitz alleged both state and federal 

39 See Stewart, 239 P.3d at 1241 (“In the past we have found privity only 

where the relationship allowed significant and unhampered control over the earlier 

litigation.”) (emphasis added). 

40 Conitz supports his argument with a citation to “Comment O of the 

Restatement of the Judgments,” without specifying an edition or a section of the 

Restatement. Because he also cites to the federal district court’s decision, which refers 

to comment o to § 27 of the RESTATEMENT (SECOND) OF JUDGMENTS, we assume this is 

the section to which he refers. 

41 RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982). 

42 Id. at cmt. o. 

43 See Patterson v. Infinity Ins. Co., 303 P.3d 493, 497 (Alaska 2013) (“[A] 

fundamental tenet of the res judicata doctrine is that it precludes relitigation between the 

same parties not only of claims that were raised in the initial proceeding, but also of 

those relevant claims that could have been raised then.” (alteration in the original)) 

(quoting Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981)) (internal quotation marks 

omitted)). 

-14- 6871
 
 

 

 

 

claims and the federal courts dismissed them all — but it is also irrelevant; identity of 

issues, like actual litigation of the claims, is an element of issue preclusion but not res 

judicata.44 

Finally, Conitz argues that he had no opportunity to address the issue of res 

judicata in the superior court because the judge raised it sua sponte. This is again 

incorrect. Teck filed a motion in the superior court arguing that Conitz’s appeal was now 

“barred by the doctrine of res judicata” after the federal court had rejected Conitz’s 

claims. Conitz filed an opposition, arguing cursorily that preclusion doctrines did not 

apply. The issue of res judicata was raised by Teck, briefed by both parties, and 

correctly decided by the superior court. 

C. Conitz’s Broad Civil Rights And Public Policy Arguments Fail. 

Conitz asks this court to rule on the legality of Teck’s shareholder 

preference even though the superior court did not, arguing that regardless of the policy’s 

application to his own personal circumstances, its mere existence is a civil rights 

violation that demands our attention. But we “do not lightly issue advisory opinions,”45 

and it is not our place to make a finding of discrimination in the first instance.46 

Conitz also argues that we are required by AS 44.62.570(g) to rule on the 

legality of Teck’s shareholder preference. The cited statute provides that a stay should 

44 See id. 

45 Larson v. State, 254 P.3d 1073, 1078 (Alaska 2011) (citing State v. ACLU 

of Alaska, 204 P.3d 364, 368-69 (Alaska 2009)). 

46 See State, Dep’t of Fish & Game, Sport Fish Div. v. Meyer, 906 P.2d 1365, 

1377 (Alaska 1995) (holding that the existence of discrimination is a factual question that 

cannot be resolved without a hearing), superseded by statute, AS 18.80.112(b). 

-15- 6871
 
 

 

 

 

 

 

not be imposed if “it is against the public interest.” There is no stay at issue here. Conitz 

may be arguing that the public interest exception to the mootness doctrine applies. We 

have recognized an exception to the mootness doctrine where a matter of grave public 

concern would otherwise evade review. 47 But we have never applied the public interest 

exception in order to allow relitigation of a private employment dispute that was already 

decided and reviewed on appeal elsewhere, and we decline to do so here.48 

V. CONCLUSION 

We AFFIRM the decision of the superior court. 

47 Doe v. State, 487 P.2d 47, 53 (Alaska 1971). 

48 The remaining issue that Conitz raises — whether he was entitled to an 

adversarial hearing before the Commission — is mooted by our decision of the other 

issues. 

-16- 6871 
In the Supreme Court of the State of Alaska 

Gregg Conitz,

 Appellant, 

 v.	 

Alaska State Commission for 

Human Rights, et al.,

 Appellee. 

Trial Court Case # 3AN-09-10085CI 

) 

) Supreme Court No. S-14357

Order 

Petition for Rehearing 

Date of Order: 3/07/2014 

)

) 

) 

) 

) 

)

) 

Before:	 Fabe, Chief Justice, Winfree, Stowers, Maassen and Bolger, 

Justices 

On consideration of the Petition for Rehearing filed on 9/20/2013, 

IT IS ORDERED: 

1. The Petition for Rehearing is GRANTED. 

2. Opinion No. 6830, issued on September 20, 2013, is WITHDRAWN. 

3. Opinion No. 6871, is issued on this date in its place. 

The revised opinion changes two sentences at pages 11-12, as noted below (added 

language in bold), and adds a new footnote 31. 

Had Conitz persuaded the superior court that the Commission 

erred in its determination of his claim, a remand to the 

Commission would have been pointless, as res judicata would 

have prevented the Commission from pursuing Conitz’s 

individual claims in an adjudicatory proceeding. 

And even if Conitz were not a party himself to the 

Commission proceeding, we would still find that he was in 

privity with the commission at least for purposes of its later 

pursuit of the claims, seeking individual relief, that he had 

already lost once. 
 

Conitz v. Alaska State Comm’n for Human Rights, et al. 

No. S-14357 

Supreme Court Order March 7, 2014 

Page 2 

Entered by direction of the court. 

cc:	 Supreme Court Justices 

Judge Volland 

Trial Court Appeals Clerk 

Publishers 

Distribution: 

Kenneth L Covell 

Attorney At Law 

712 8th Ave 

Fairbanks AK 99701 

Sean Halloran 

Littler Mendelson PC 

310 K St Ste 400 

Anchorage AK 99501 

William Milks 

Attorney General’s Office 

PO Box 110300 

Juneau AK 998110300 

Thomas M Daniel 

Perkins Coie 

1029 W 3rd Ave Ste 300 

Anchorage AK 99501 

Clerk of the Appellate Courts

 /s/ 

Marilyn May