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Ferguson and MOA v. Citizens for Representative Governance et al (9/16/94), 880 P 2d 1058
NOTICE: This is subject to formal 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,
THE SUPREME COURT OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE AND )
LEJANE FERGUSON, )
) Supreme Court Nos. S-5616/5626
Appellants, ) Superior Court No.
Cross-Appellees, ) 3AN-92-10606 CI
CITIZENS FOR REPRESENTATIVE )
GOVERNANCE, CAROL STOLPE, )
WALTER FEATHERLY and )
DOROTHY COX, )
YES FOR RECALL, )
) O P I N I O N
Cross-Appellant. ) [No. 4120 - September 16,
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Brian C. Shortell,
Appearances: Scott A. Brandt-Erichsen,
Assistant Municipal Attorney, Richard L.
McVeigh, Municipal Attorney, Anchorage, for
Appellants. Jonathan B. Rubini, Birch,
Horton, Bittner & Cherot, Anchorage, and
Walter T. Featherly, Koval & Featherly,
Anchorage, for Appellees/Cross-Appellees.
Raymond H. Royce and Brent A. Johnson, Law
Offices of Royce & Brain, Anchorage, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
Three Anchorage School Board (Board) members challenged
the validity of petitions to recall them from office. They lost
both the case and their elected offices. The superior court
ruled that they were public interest litigants, and thus denied
the Municipality's motion for attorney's fees. This appeal
followed. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Yes For Recall (YFR) is an unincorporated association
formed to organize the recall of Anchorage School Board Members
Walter Featherly, Carol Stolpe, Cabot Christianson and Dorothy
Cox. Less than 12,000 recall petition signatures for each Board
member were required to place the issue on the ballot. YFR
submitted over 18,000 signatures to the Municipal Clerk for each
Board member. The Municipal Clerk originally determined that
only about 4,500 of the signatures were valid and rejected the
petitions.1 YFR filed suit. Superior Court Judge Karl S.
Johnstone ruled that the petition sponsors did not have to
register with the Municipal Clerk before seeking signatures; he
ordered the petitions certified as valid. The Anchorage
Municipal Assembly set a special recall election for December 15.
The Municipality stipulated that YFR was a prevailing public
interest litigant in that litigation and paid YFR $30,000 in
attorney's fees and costs.
Citizens For Representative Governance (CFRG) is an
unincorporated association formed to oppose the recall of the
Board members. Its officers are Nick Begich and Sheelah Slade.
After the petitions were certified, CFRG filed suit to stop the
recall election, alleging that some of the petition subscribers
were not registered to vote at the time that they signed the
recall petition. YFR intervened in the litigation. Superior
Court Judge Brian C. Shortell denied CFRG's motion for an
injunction. On the day of the election, Stolpe, Featherly and
Cox2 agreed to join the suit individually as plaintiffs. All
three were recalled in an election marked by low voter turnout.
Their suit continued. The superior court temporarily enjoined
the certification of the election results while CFRG compiled a
list of challenged signatures. Originally CFRG challenged 2,682
signatures. After clarifying that subscribers did not have to be
registered for thirty days before signing, the list was reduced
to about 1,000 challenged signatures. At a hearing on January 8,
counsel for the Municipality disclosed for the first time that
the Municipal Clerk had not counted from 2,200 to 4,000
additional signatures. Counsel for CFRG realized that even if
all of the 1,000 challenged signatures were invalid and even if
there were only 2,200 rather than 3,000 or 4,000 new signatures,
there were now sufficient signatures under any reasonable error
Counsel for CFRG moved to dismiss the case with
prejudice, but specifically referred to the "one delicate issue
that lingers out there": attorney's fees. He characterized the
suit as "classic public interest litigation" and noted the
inequities of the late disclosure of dispositive information by
the Municipality. The court granted the motion to dismiss and
reserved determination on the issue of attorney's fees.
The Municipality moved for attorney's fees of
$17,700.80 and costs of $1,499.28. YFR moved for attorney's fees
of $29,749 and costs of $3,845.45. The court denied both
motions. It held that CFRG, Stolpe, Featherly and Cox were all
public interest litigants. The Municipality and YFR appealed.
A. CFRG, STOLPE AND FEATHERLY ARE
PUBLIC INTEREST LITIGANTS.
A trial court's determination of whether a party is a
public interest litigant is reviewed for an abuse of discretion.
Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d
162, 171 (Alaska 1991).
1. CFRG is a Proper Party to This Action.
YFR argues that only the individual board members can
bring the suit. However, public interest litigants may organize
to protect their rights or advance their cause. See, e.g.,
Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d
1281, 1292 (Alaska 1986); Oceanview Homeowners Ass'n v. Quadrant
Constr. & Eng'g, 680 P.2d 793, 799 (Alaska 1984); Southeast
Alaska Conservation Council, Inc. v. State, 665 P.2d 544 (Alaska
1983). Additionally, no reason has been suggested to
differentiate between an incorporated and an unincorporated
association or between a general purpose association and one
formed for a particular purpose. Generally, we analyze the
public interest litigant status of the group by looking to the
status of the members. Alaska Survival, 723 P.2d at 1292
(looking to individual members' use of disputed land). When a
group does not reveal the identity of its members, a court may
not be able to determine the group's public interest status.
Citizens Coalition, 810 P.2d at 171-72. However, the identity
and motivation of CFRG is not so murky.
The Municipality and YFR note that the challenged Board
Members were "closely involved" with CFRG and personally
interested in the outcome. In fact, YFR alleges that CFRG is
simply an "alter ego"for Featherly and Stolpe. We accept this
characterization for the purpose of determining CFRG's public
interest status. If Featherly and Stolpe are public interest
litigants, CFRG is a public interest litigant.
2. Featherly and Stolpe are Public Interest Litigants.
To qualify as a public interest litigant, a party must
meet a four-part test.
(1) Is the case designed to effectuate strong
(2) If the plaintiff succeeds will numerous
people receive benefits from the lawsuit?
(3) Can only a private party have been expected
to bring the suit?
(4) Would the purported public interest litigant
have sufficient economic incentive to file suit
even if the action involved only narrow issues
lacking general importance?
Id. at 171 (quoting Anchorage Daily News v. Anchorage Sch. Dist.,
803 P.2d 402, 404 (Alaska 1990)).
In McCormick v. Smith, 799 P.2d 287, 288 (Alaska 1990),
we held that a school board member who sought to enjoin her
recall from office was a public interest litigant. This case is
largely governed by the holding in McCormick.
First, the superior court found that the suit was
"designed to effectuate strong public policies favoring fair and
correctly-conducted elections." The proposition that our
democratic society has a strong public interest in fair elections
Rather than face the daunting task of a rhetorical
assault on this proposition, the Municipality and YFR attempt a
flanking maneuver by arguing that CFRG was motivated by personal
rather than public objectives. To the extent that this argument
suggests that CFRG brought the suit in bad faith the record lends
no support. Public interest litigants must file and pursue their
suit in good faith. McCormick, 799 P.2d at 288 n.4; Falke v.
State, 717 P.2d 369, 376 n.10 (Alaska 1986). "Plaintiffs who in
good faith seek to vindicate the strong public policy favoring
fair and correctly conducted elections should not be penalized by
an assessment of attorney's fees unless the suit is frivolous."
Thomas v. Croft, 614 P.2d 795, 798 (Alaska 1980) (emphasis
added). The court found that the suit was brought in good faith
and that the outcome of the suit "was unpredictable until the
last hearing, at which the Municipality revealed for the first
time that it had erroneously rejected thousands of recall
The Municipality and YFR argue that the suit was
frivolous because CFRG should have intervened in the original
litigation brought by YFR. A fair reading of the record supports
CFRG. Until Judge Johnstone's final order, the recall petition
had been rejected. When the petitions were approved, there was a
narrow margin for error and good reason to believe that invalid
signatures had been counted. The suit was not frivolous.
Second, the court found that the suit "exposed
questionable election procedures"and "numerous people would have
benefited had the plaintiffs prevailed." The Municipality
characterizes as speculative the claim that numerous persons
would have benefited from the suit. It mistakenly searches for
other particular individuals that might be aided by the suit
(future recall targets), rather than recognizing the interest
that all the citizens of the state have in sound election and
recall procedures. In McCormick, this court held that an
officeholder's challenge to a recall petition met the first two
parts of the test. The public's interest in maintaining the
procedural integrity of the election process was sufficient and
the public would benefit from vindication of that interest.
McCormick, 799 P.2d at 288-89.
Third, the court found that "[o]nly private persons or
organizations could be expected to file this action."4 We have
stated that "[o]nly private persons -- the officials sought to be
recalled -- could be expected to file a lawsuit challenging
improprieties related to scheduling a recall election."
McCormick, 799 P.2d at 287-88. Featherly and Stolpe meet this
requirement of the test.
Fourth, the court found that "none of the plaintiffs
had sufficient independent economic incentive to file suit." The
Municipality and YFR emphasize that Featherly, as School Board
President and Stolpe, as a Board member, received stipends of
$1,150 and $900 per month respectively. The public interest
litigant in McCormick served on the school board without
compensation. McCormick, 799 P.2d at 288. The Municipality and
YFR seize upon this to distinguish the present case.
Because a salary is usually a sufficient economic
incentive to file suit, employees seeking reinstatement or
increased salary are normally not public interest litigants.
Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 480 (Alaska
1984) (accountant); Acevedo v. City of North Pole, 672 P.2d 130,
137 (Alaska 1983) (police officer); Storrs v. State Medical Bd.,
664 P.2d 547, 550 (Alaska) (license to practice medicine), cert.
denied, 464 U.S. 937 (1983); Rouse v. Anchorage Sch. Dist., 613
P.2d 263, 266-67 (Alaska 1980) (teacher). However, a number of
cases stand for the proposition that the normal compensation of
an elected office is not sufficient economic incentive to defeat
the public interest status of an officeholder or candidate
seeking to vindicate a public interest. Falke, 717 P.2d at 376
n.10 (Alaska Senate); Thomas, 614 P.2d at 797-98 (Alaska
Governor, under unusual facts); Gilbert v. State, 526 P.2d 1131,
1136 (Alaska 1974) (Alaska Senate). The distinction between
these two lines of cases is justified by the strong public
interest in fair and honest elections. If there is a good faith,
nonfrivolous claim of error in an election, there is a strong
state interest in seeing that the election results are quickly
validated or corrected. Often the candidate or officeholder is
the only person likely to file suit. Featherly and Stolpe should
not be denied public interest status merely because of their
The Municipality and YFR make a related argument that
Featherly and Stolpe were motivated by personal rather than
public interest concerns. In other words, they were more
concerned about keeping their offices than promoting fair
elections. A public interest litigant's goals need not be purely
altruistic. Simply, they must not have a "significant economic
interest" in the case. Most, if not all, public interest
litigants may have some personal interest in the case beyond the
broad public policy vindicated.
The evidence supports the trial court's finding, that
Featherly and Stolpe meet each requirement of the test.
Therefore, CFRG also meets the test.
B. THE TEST SHOULD NOT BE CHANGED
The Municipality asks that we modify one element of and
add a new element to the present four-part public interest
litigant test.5 Neither the Municipality nor YFR appears to have
raised these arguments before the trial court. We address these
arguments because they are not dependent on any new or
controverted facts and relate generally to the Municipality's
trial court theory that CFRG, Featherly and Stolpe were not
public interest litigants due to their personal interest in the
outcome of the litigation. See O'Neill Investigations, Inc. v.
Illinois Employers Ins., 636 P.2d 1170, 1175 n.7 (Alaska 1981).
Under the doctrine of stare decisis,
we will overrule a prior decision only
when "clearly convinced that the rule was
originally erroneous or is no longer sound
because of changed conditions, and that more
good than harm would result from a departure
from precedent, . . ." A decision may prove
to be originally erroneous if the rule
announced proves to be unworkable in
practice. Additionally, a prior decision may
be abandoned because of "changed conditions"
if "related principles of law have so far
developed as to have left the old rule no
more than a remnant of abandoned doctrine,
[or] facts have so changed or come to be seen
so differently, as to have robbed the old
rule of significant application."
Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1176
(Alaska 1993) (citations omitted).
The Municipality appears to argue that the test was
originally erroneous because it has proven unworkable. In the
Municipality's view, it is unworkable because even suits truly in
the public interest automatically take money from the public
coffers that could be used for other, and presumably more
beneficial, public purposes. The state or local government
defendant should have the power to decide whether to pay the
public interest litigant or use the money to build a road, hire a
teacher, or lower taxes. "The public interest litigant exception
should be limited to those who, but for their public interest
status, would not be able to bring the case."
The Municipality would implement this limitation
through two modifications to the present test. First, the
Municipality argues that the fourth element should be modified so
that any interest in the litigation, economic or otherwise, would
disqualify a party from public interest status. We reject this
suggestion. We have previously recognized that a party may be a
public interest litigant despite some personal interest in the
outcome. Alaska Survival, 723 P.2d at 1292; Oceanview Homeowners
Ass'n, 680 P.2d at 799. The members of Alaska Survival opposed
the farming of certain parcels of State land because the members
hunted, fished, and gathered wood on the land. Alaska Survival,
732 P.2d at 1292. They had an aesthetic and recreational
interest in seeing that the land was not turned to agricultural
uses. Oceanview homeowners sought to prohibit expansion of a
local airstrip runway. Oceanview Homeowners Ass'n, 680 P.2d at
796-97. The homeowners had health and safety concerns over
increased air traffic. In both cases, the public interest
litigants had personal interests in the outcome of the
litigation. In both cases, they had a peripheral economic
interest in the outcome as well. But the primary motivation for
and effect of the lawsuit was to vindicate the public interest.
Indeed, when the state takes an arguably improper action
affecting the public interest, the persons most likely to step
forward and challenge the action are those with some aesthetic,
health, moral, political, recreational, religious, political,
safety, social or other personal interest in the outcome. We
rightly require that these parties not have an economic stake in
the outcome sufficient to prompt the suit without public interest
litigant status. But imposing a requirement that the litigant be
completely disinterested sweeps too broadly.
Second, the Municipality would add a fifth element; no
person worth over one million dollars or corporation worth over
two million dollars can be a public interest litigant. There is
neither an allegation nor a showing that any of the participants
in this case are worth more than these limits. The proposed rule
would be cumbersome in application. More importantly, such a
rule is unnecessary. Cases introducing and refining the
requirement that the litigant not have a sufficient economic
interest in the litigation have involved large and presumably
wealthy corporations. See, e.g., Mobil Oil Corp. v. Local
Boundary Comm'n, 518 P.2d 92, 104 (Alaska 1974); Lynden
Transport, Inc. v. State, 532 P.2d 700, 717 (Alaska 1975); Weaver
Bros., Inc. v. Alaska Transp. Comm'n, 588 P.2d 819, 823 (Alaska
1978); Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska
1982). Yet in each case, we focused on the possible economic
motivation of the litigant, not the litigant's net worth. We
continue to believe that this is the proper focus.
CFRG, Featherly and Stolpe are public interest
litigants. They meet the requirements of the test. We are not
persuaded there is any reason to change the test. The judgment
of the trial court is AFFIRMED.
1 After further review, the Municipal Clerk increased her
estimate of the number of valid recall signatures, but the total
remained well below the number required.
2 This court is concerned only with the interests of
CFRG, Stolpe and Featherly. Cabot Christianson resigned before
the recall election. He never joined the litigation. Dorothy
Cox filed for bankruptcy after the recall election. The
Municipality and YFR limit their arguments to the extent required
by the automatic bankruptcy stay dated July 13, 1993. No party
has indicated any way that the public interest status of Board
Member Cox differs from Board Member Stolpe. Because of our
disposition of the case, we need not reach the effect of the
3 The developments in the number of valid signatures are
Signatures Stolpe Featherly Cox
Submitted for Recall 19,074 18,834 19,020
Required for Recall 11,871 11,591 11,387
Certified Count 12,205 12,004 12,154
Margin at Election 334 413 767
Plaintiff's Alleged Errors 1,000 1,000 1,000
Plaintiff's Alleged Count 11,205 11,004 11,154
Plaintiff's Alleged Margin -666 -587 -233
Defendant's New Names 2,200 2,200 2,200
Petition Error Rate 59% 58% 59%
New Valid Names 1,298 1,276 1,298
New Count 12,503 12,280 12,452
New Margin 632 689 1,065
4 The Municipality and YFR equivocate. The Municipality
makes a contradictory rebuttal: 1) CFRG is not a "private party"
under the test, and 2) the fact that CFRG sued before Featherly
and Stolpe joined shows that other "private parties" could be
expected to file suit. YFR assumes "arguendo"that CFRG would
meet this requirement.
5 Although the Municipality distinguishes between
offensive and defensive use of public interest status, it
proposes essentially the same modifications to both. It proposes
that good faith be added as a sixth element to defensive use.
However, we already consider good faith pursuit of a nonfrivolous
suit to be a requirement for public interest status, whether used
offensively or defensively. See Thomas, 614 P.2d at 798.
Finally, the Municipality argues that a public interest litigant
should be required to bring the suit within a reasonable time in
order "to minimize the cost and inconvenience to the public."
Because we conclude that CFRG acted reasonably under the
circumstances, we need not address the propriety of adding this
requirement to the test.